Constitutionality MS253B.185 Committment denied Jury Trial A08-1693 File 27_MH_PR-06-985 Joshua J.Cox

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2008).

STATE OF MINNESOTA

IN COURT OF APPEALS

A08-1693

In the Matter of the Civil Commitment of: Joshua Joseph Cox

Filed March 10, 2009

Affirmed

Toussaint, Chief Judge Hennepin County District Court

File No. 27-MH-PR-06-985 253B.185, 2008 Minnesota Statutes

Stephen D. Radtke, 10781 Hopkins Circle, Bloomington, MN 55420 (for appellant Cox)

Michael O. Freeman, Hennepin County Attorney, John L. Kirwin, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for respondent State of Minnesota)

Considered and decided by Toussaint, Chief Judge; Kalitowski, Judge; and Halbrooks, Judge. U N P U B L I S H E D O P I N I O N

TOUSSAINT, Chief Judge

Appellant Joshua Joseph Cox challenges his commitment as a sexually dangerous person (SDP) under Minn. Stat. § 253B.185 (2006), arguing that the statute is unconstitutional, that his commitment violated his right to a jury trial, and that the district court erred in concluding that he had engaged in a course of harmful sexual 2

conduct, in rejecting his proposed less-restrictive alternative, and in committing appellant despite testimony about changes in his condition. Because the supreme court has established that Minn. Stat. § 253B.185 is constitutional and that there is no right to a jury trial in commitment cases and because we see no error on the part of the district court, we affirm. D E C I S I O N

1. Constitutionality of Minn. Stat. § 253B.185 (the SDP Act) "Minnesota statutes are presumed constitutional, and our power to declare a statute unconstitutional should be exercised with extreme caution and only when absolutely necessary." In re Haggerty, 448 N.W.2d 363, 364 (Minn. 1989). Appellant argues that the SDP Act, under which he was committed, is unconstitutional because it violates his substantive and procedural due-process rights, creates double jeopardy, and violates equal protection.

A. Substantive Due Process

An SDP is a person who "(1) has engaged in a course of harmful sexual conduct . . .; (2) has manifested a sexual, personality, or other mental disorder or dysfunction; and (3) as a result, is likely to engage in acts of harmful sexual conduct . . . ." Minn. Stat. § 253B.02, subd. 18c(a) (2006).

We now clarify that the SDP Act allows civil commitment of sexually dangerous persons who have engaged in a prior course of sexually harmful behavior and whose present disorder or dysfunction does not allow them to adequately control their sexual impulses, making it highly likely that they were engage in harmful sexual acts in the future.

In re Linehan, 594 N.W.2d 867, 876 (Minn. 1999) (Linehan IV). 3

For commitment as an SDP, "it is not necessary to prove that the person has an inability to control the person‟s sexual impulses." Minn. Stat. § 253B.02, subd. 18c(b). Linehan IV explicitly rejected the argument that this language violated Kansas v. Hendricks, 521 U.S. 346, 117 S. Ct. 2072 (1997), and held that the statute was to be interpreted to require that a person‟s mental disorder "does not allow [the person] to adequately control [his] sexual impulses." Linehan IV, 594 N.W.2d at 876; see also Kansas v. Crane, 534 U.S. 407, 413, 122 S. Ct. 867, 870 (2002) (holding that "proof of serious difficulty in controlling behavior" is sufficient for commitment); In re Martinelli, 649 N.W.2d 886, 890 (Minn. App. 2002) (holding that Linehan IV satisfied the Crane standard), review denied (Minn. Oct. 29, 2002). Thus, appellant‟s substantive due process challenge lacks merit. B. Double Jeopardy

Appellant‟s double-jeopardy argument has also been explicitly rejected. "The Supreme Court‟s reasoning [in Hendricks] supports our earlier ruling that the SDP Act does not contravene the Double Jeopardy . . . clause[]." Linehan IV, 594 N.W.2d at 871.

Appellant argues that the statute is punitive because it does not provide treatment until after a sentence has been served. But "[t]his procedure does not render the commitment statute punitive; had the person not been committed, he would still have had to serve time in the correctional facility." Joelson v. O’Keefe, 594 N.W.2d 905, 912 (Minn. App. 1999), review denied (Minn. July 28, 1999).

Appellant also claims that the statute is punitive because no one committed under it has been discharged. But protection of the public is a primary purpose of SDP 4

commitment. See In re Blodgett, 510 N.W.2d 910, 914 (Minn. 1994) (holding that "compelling government interest [required to justify the state in depriving an individual of freedom] is the protection of members of the public from persons who have an uncontrollable impulse to sexually assault"). Appellant provides no support for the view that, because no one has been discharged, SDP commitment violates double jeopardy. C. Equal Protection.

Appellant argues that commitment violates his equal protection right because others who are also a threat to public safety are not committed. But "[this] argument ignores the fact that the sexual predator poses a danger that is unlike any other." Id. at 917 (rejecting argument that statutory commitment violates equal protection). Thus, the supreme court has rejected appellant‟s three challenges to the constitutionality of the SDP Act. D. Right to a Jury Trial

Appellant argues that his commitment hearing violated his right to a jury trial. "[T]he Minnesota Supreme Court has rejected the argument that a jury trial is required [in commitment proceedings."] Joelson, 594 N.W.2d at 910 (citing State ex rel. Pearson v. Probate Court, 205 Minn. 545, 556-57, 287 N.W. 297, 303 (1939), aff’d 309 U.S. 270, 60 S. Ct. 523 (1940)).

Appellant concedes that this is the present state of the law but argues that "the time is right for a renewed review of the right to jury trial in these cases." The "task of extending existing law falls to the supreme court or the legislature, but it does not fall to this court." Tereault v. Palmer, 413 N.W.2d 283, 286 (Minn. App. 1987), review denied 5

(Minn. Dec. 18, 1987). This court lacks authority to reopen the issue. 2. Course of Harmful Sexual Conduct

In reviewing a civil commitment, this court reviews factual findings under a clear-error standard. In re Civil Commitment of Stone, 711 N.W.2d 831, 836 (Minn. App. 2006), review denied (Minn. June 20, 2006).

The district court found that appellant had "engaged in a course of harmful sexual conduct" as defined in Minn. Stat. § 253B.02, subd. 7a. See Minn. Stat. § 253B.02, subd. 18c(a)(1) (listing engagement in course of harmful sexual conduct as first element in definition of SDP). Appellant challenges this finding on the ground that two of his three victims, his stepbrother and stepsister, claimed that they were not harmed by his conduct. But "„[h]armful sexual conduct‟ means sexual conduct that creates a substantial likelihood of serious physical or emotional harm to another." Minn. Stat. § 253B.02, subd. 7a(a) (2006) (emphasis added). "The presumption is not that a victim actually suffers serious emotional harm, but that the conduct creates a substantial likelihood of such harm." Stone, 711 N.W.2d at 837. Thus, the issue is not whether the victims suffered actual harm from appellant‟s conduct; the issue is whether appellant‟s conduct created a substantial likelihood of serious emotional harm.

One court-appointed examiner, when asked if appellant‟s conduct was "the type of behavior that‟s harmful generically?" answered, "Generically or typically, or at least a strong likelihood [that the behavior is] harmful." A second court-appointed examiner answered, "That‟s correct" when asked if appellant‟s behavior "would typically cause emotional harm and, in fact, similar behavior in [appellant‟s] case did cause substantial 6

psychological harm [to appellant‟s siblings]?"

The record also supports the substantial emotional harm caused to the third victim, a 13-year-old boy. The officer who interviewed the boy said: "He was very upset about what had taken place and I could see that he was very scared and upset as we spoke. At this time he was crying very hard and before we could even start, he stood up and threw up into a garbage can located in the kitchen area."

The district court‟s finding that appellant engaged in a course of harmful sexual conduct as defined in Minn. Stat. § 253B.02, subd. 7a(a), is not clearly erroneous. 3. Less Restrictive Alternative

An SDP is committed "to a secure treatment facility unless the patient establishes by clear and convincing evidence that a less restrictive treatment program is available that is consistent with the patient‟s treatment needs and the requirements of public safety." Minn. Stat. § 253B.185, subd. 1. On review, this court considers whether the district court complied with the commitment statute. In re Knops, 536 N.W.2d 616, 620 (Minn. 1995).

Appellant challenges his commitment on the ground that a less-restrictive program is available, i.e., treatment at Safety Center and residence with, and supervision by, his mother and stepfather. Appellant was previously treated at Safety Center from September to November 2001, from July 2002 to February 2003, and from March 2003 to December 2005. During his treatment, he was intermittently suspended for probation and rule violations and was ultimately discharged without having completed treatment. Appellant also escaped from his stepfather‟s supervision in November 2002. 7

One examiner answered "Yes" when asked if appellant needed to complete treatment in a secure setting and noted that, when Safety Center discharged appellant, it "certainly recommend[ed] that inpatient treatment was probably a better alternative for [appellant]." This examiner was not aware of any facility that "could provide 24-hour a day secure supervision for [appellant] while [Safety Center does] the primary treatment modality." A second examiner testified that, although there had been problems when appellant was at Safety Center and there would need to be very specific criteria for behavior that would result in appellant‟s discharge from Safety Center, "with some reservations," he would "be willing to consider" treatment at Safety Center and residence with appellant‟s mother and stepfather. This examiner told the court that a stay of commitment would be necessary for the Safety Center alternative and, when asked what he would recommend if the choice were commitment or release, said "Commitment."

Thus, while both examiners expressed the wish that there were a residential facility that could either provide treatment for appellant or accommodate him while he pursued treatment at Safety Center, they agreed that there is no such facility.1 The statute gives appellant the opportunity to present evidence of a less-restrictive alternative, but it does not give him the right to be assigned there. In re Kindschy, 634 N.W.2d 723, 731 (Minn. App. 2001), review denied (Minn. Dec. 19, 2001). Appellant did not "establish[]

1 A third examiner, who testified at the review hearing, also agreed. He stated that "if there was a residential facility for [appellant] then a stay [of commitment] would be appropriate, but, unfortunately, the only residential program that we have in the state . . . will not take people on a stay of commitment." 8

by clear and convincing evidence that a less restrictive treatment program is available that is consistent with [his] treatment needs and the requirements of public safety." Minn. Stat. § 253B.185, subd. 1. The district court complied with the statute by committing appellant to a secure facility. 4. Claim of Changes in Appellant’s Condition

At the March 2008 review hearing, appellant‟s mother testified about positive changes she perceived in his condition since the commitment hearing a year earlier. See In re Linehan, 557 N.W.2d 167, 171 (Minn. 1996) (Linehan II) (stating that evidence of changes in patient‟s condition is among items properly considered at review hearing), vacated and remanded, 522 U.S. 1011, 118 S. Ct. 596 (1997), aff’d as modified, 594 N.W.2d 867 (Minn. 1999). Appellant contends that the district court erred in committing him indeterminately despite this evidence.

But the report submitted by the Minnesota Sex Offender Program (MSOP) in October 2007 indicated that:

Since his admission to MSOP in October 2006, [appellant] has reportedly had rule violations for problematic behaviors such as verbal abuse, taking money from other patients, possession of pornography, not wearing his identification badge, unit disruption, not maintaining hygiene, fraudulent misrepresentation, refusal to follow staff direction, and possessing various contraband. . . . There was also concern that [appellant] was engaging in sexual contact with another patient; however, [he] denied any inappropriate activity had taken place. . . .

. . . .

. . . His condition is unchanged and there is no new information that would suggest his risk to the community has diminished since the initial commitment. Hence, [he] continues to satisfy the statutory requirements as an SDP. 9

The examiner at the review hearing also reported that appellant continued to meet the criteria for commitment. The district court did not err in committing appellant despite his mother‟s testimony.

Affirm

McClure Jr v.Felhaber Law Firm et al A08-0673_MS480A.08

. A08-673
Stanford Taylor Edward McClure, Jr., Plaintiff, Jesse Gant, III, Appellant,
vs. H. Le Phan, individually and as employee/agent of Felhaber, Larson,
Fenlon & Vogt Law Firm, et al., Respondents. felhaber law firm minneapolis - Google Search
Affirmed. Judge Jill Flaskamp Halbrooks.
Ramsey County District Court, Hon. Kathleen R. Gearin.

This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2008).

480A.08, 2008 Minnesota Statutes

STATE OF MINNESOTA IN COURT OF APPEALS A08-0673

Stanford Taylor Edward McClure, Jr., Plaintiff, Jesse Gant, III, Appellant, vs. H. Le Phan, individually and in her capacity as an employee/agent of Felhaber, Larson, Fenlon & Vogt Law Firm, et al., Respondents.

Filed March 10, 2009 Affirmed Halbrooks, Judge Ramsey County District Court File No. 62-C8-07-004921 Jesse Gant, III, 13091 Taconite Court Northeast, Blaine, MN 55449 (attorney pro se) Paul C. Peterson, William L. Davidson, Lind, Jensen, Sullivan & Peterson, P.A., 150 South 5th Street, Suite 1700, Minneapolis, MN 55402 (for respondents)

Considered and decided by Halbrooks, Presiding Judge; Johnson, Judge; and Poritsky, Judge.

Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10. 2 U N P U B L I S H E D O P I N I O N

HALBROOKS, Judge

Appellant attorney, pro se, challenges the district court‟s grant of respondents‟ motion for sanctions against him and the denial of his own motion for sanctions. Because we conclude that the district court properly exercised its discretion, we affirm the district court‟s grant of respondents‟ motion and denial of appellant‟s motion. FACTS

Respondent H. Le Phan, an attorney, represented Career Systems Development Corporation (CSD) in several lawsuits brought against CSD by former employees. One of these suits was brought by Maryland Rosenbloom, pro se. Rosenbloom v. Career Sys. Dev. Corp., No. 62-C8-05-012402 (Ramsey County Dist. Ct.). Former CSD employees Stanford McClure and Courtney Yorke, who were involved in separate lawsuits against CSD, together attended a February 26, 2007 motion hearing in the Rosenbloom matter.

The next day, Phan wrote a letter to the district court stating that she would be hiring an off-duty police officer to attend Rosenbloom‟s upcoming deposition because she had been intimidated by events that occurred after the hearing on February 26. Phan enclosed an affidavit dated February 27, 2007, which set forth her version of events. According to Phan, after leaving the courthouse on February 26, she saw McClure, Rosenbloom, and Yorke approximately 200 feet from her. The three men allegedly looked directly at her, walked toward her, and followed her to a parking-ramp elevator. Phan stated in her affidavit that these events led her to believe that McClure, Rosenbloom, and Yorke were waiting for her to leave the courthouse so that they could 3

harass and intimidate her. She also stated that their conduct put her "in fear of imminent bodily harm . . . [and] caused [her] emotional distress and anxiety," and that "McClure testified at his deposition that he fantasizes about killing people who have wronged him."

On May 7, 2007, McClure, represented by appellant Jesse Gant, filed a defamation suit against Phan and her employer, respondent Felhaber, Larson, Fenlon & Vogt Law Firm. On May 22, 2007, respondents moved to dismiss the defamation suit with prejudice pursuant to Minn. R. Civ. P. 12.02. Respondents also moved for a protective order staying discovery until the district court ruled on the motion to dismiss.

On May 23, 2007, Gant wrote to respondents‟ counsel, giving notice of his intent to bring a motion for sanctions against respondents and their attorney unless they withdrew the motion to dismiss. In a May 31, 2007 letter to Gant, respondents‟ counsel stated that he did not intend to withdraw the motion to dismiss. Respondents‟ counsel also enclosed a rule 11 notice of motion, stating that McClure‟s defamation suit was barred by absolute privilege. In a letter dated June 1, 2007, Gant replied:

I received your letter . . . regarding your notice to file Rule 11 sanctions if I do not dismiss my client‟s case. That is not going to happen. Therefore, there is no need to wait the 21 days. So, for the sake of expediency, please obtain your motion date and time and provide me with notice thereof, so that I can make my motion for sanctions and await responding to your motion to dismiss.

McClure moved for sanctions on June 20, 2007. A hearing on the motion to dismiss and the cross-motions for sanctions was held on July 23, 2007.

The district court issued an order (1) granting respondents‟ rule 12.02 motion to dismiss; (2) dismissing McClure‟s defamation claim with prejudice and on the merits; 4

(3) dismissing McClure‟s motion for sanctions; and (4) dismissing respondents‟ motion for a protective order as moot and ordering cessation of discovery. The district court stated that the defamation case "must be dismissed on absolute privilege grounds."

Respondents subsequently moved for sanctions against Gant pursuant to Minn. R. Civ. P. 11 and Minn. Stat. § 549.211 (2006). Gant moved for sanctions against respondents and their attorney. At the motion hearing, Gant appeared on his own behalf, stating that he was not representing McClure because the motion was for sanctions against him personally. McClure did not appear at the hearing and does not appeal the dismissal of his defamation suit.

On October 31, 2007, the district court filed an order granting respondents‟ motion for sanctions and denying Gant‟s motion for sanctions. Gant was ordered to pay respondents $8,460 for attorney fees "they reasonably incurred as a result of defending this action." This appeal from the resulting money judgment follows. D E C I S I O N

I. Gant argues that sanctions against him are not warranted. We review a district court‟s award of sanctions under Minn. R. Civ. P. 11 or Minn. Stat. § 549.211 for an abuse of discretion. Cole v. Star Tribune, 581 N.W.2d 364, 370 (Minn. App. 1998). Because "courts should construe rule 11 somewhat narrowly to avoid deterring legitimate or arguably legitimate claims," this court will reverse a district court‟s award of sanctions if the sanctioned party‟s assertion "is not an objectively unreasonable one." Conant v. 5

Robins, Kaplan, Miller & Ciresi, L.L.P.

, 603 N.W.2d 143, 150 (Minn. App. 1999) (quotation omitted), review denied (Minn. Mar. 14, 2000).

The district court focused on whether or not Gant acted reasonably in filing McClure‟s defamation suit. The district court determined that Gant‟s filing of the suit was not objectively reasonable on three grounds: (1) the defamation claim against Phan was "unfounded" because establishing a defamation claim requires proof that a statement was false and "Phan‟s statements that she felt intimidated or fearful are emotions, and [could not] be proven false"; (2) "Gant could not have reasonably thought, or in good faith argued, that existing law supported his client‟s claims"; and (3) "Gant had knowledge of the absolute privilege doctrine from past litigation." The district court specifically noted Gant‟s representation of the plaintiff in Cole, in which Gant was sanctioned by the district court for his "unfounded arguments against awarding absolute privilege" to the defendant. The district court stated that "Gant must be held to the standard of a reasonable attorney, not his own standards. The public policy is to sanction those who bring either frivolous or harassing litigation."

Gant contends that he had an objectively reasonable basis for asserting McClure‟s defamation claim because: (1) McClure was not a party to Rosenbloom and (2) respondents stated in their answer that the February 26, 2007 Rosenbloom hearing was "unrelated" to McClure.

The supreme court‟s decision in Mahoney & Hagberg v. Newgard, 729 N.W.2d 302 (Minn. 2007), makes it clear that Gant‟s first argument is without merit. Mahoney & Hagberg, which Gant has cited throughout the defamation lawsuit and to this court, 6

involved a suit between two former business partners, Boldt and Burns. 729 N.W.2d at 304. Boldt and Burns had formed a company that provided administrative support to Mahoney & Hagberg, P.A., a law firm. Id. During the course of Boldt‟s lawsuit against Burns, Boldt‟s attorney drafted an affidavit signed by Newgard, a former secretary of the law firm. Id. Newgard‟s affidavit alleged improper and illegal conduct by several of the firm‟s attorneys. Id. The law firm then sued Newgard based on her affidavit. Id. at 305. The supreme court concluded that Newgard‟s statements in her affidavit had "reference and relation" to the subject matter of the litigation between Boldt and Burns; therefore the statements were relevant in the context of absolute privilege. Id. at 308. The supreme court noted that relevance in this context is not determined "by asking whether [the] statements are „legally relevant.‟ Rather, we look to see if the statement has a connection to the case before the court, keeping in mind that any doubts about the relevance of the statement are resolved in favor of relevancy and pertinency." Id.

Here, the contested statements in Phan‟s affidavit were relevant because they had a connection to the Rosenbloom litigation. Phan was explaining to the district court why she would be hiring a police officer to be present at a deposition to be taken in the Rosenbloom suit. The relevant statements in Newgard‟s affidavit in Mahoney & Hagberg were protected by absolute privilege, although they concerned persons who were not parties to the Boldt–Burns litigation. Likewise, the relevant statements in Phan‟s affidavit were protected by absolute privilege, although they were made about McClure, who was not a party in Rosenbloom. 7

Gant‟s argument regarding respondents‟ answer is also without merit. In their answer, respondents stated "that at an unrelated hearing involving Mr. Rosenbloom, Ms. Phan requested that the courtroom be closed to spectators." Gant contends that respondents‟ use of the word "unrelated" to describe the February 26, 2007 Rosenbloom hearing means that McClure "had no relation" to Rosenbloom. Gant appears to misunderstand the concept of relevance within the context of absolute privilege. As Mahoney & Hagberg makes clear, the question is whether the statements in the affidavit are related to the case before the court, not whether the person claiming defamation has any relation to the case before the court. See 729 N.W.2d at 306, 308. Except for McClure‟s nonparty status in Rosenbloom, Gant does not contend that the statements about McClure in Phan‟s affidavit were unrelated to that case.

Because Gant‟s arguments regarding whether it was objectively reasonable for him to file the defamation claims on behalf of McClure lack merit, the district court did not abuse its discretion by granting respondents‟ motion for sanctions against him. II.

Gant argues that the amount of sanctions awarded to respondents was excessive because no discovery took place, respondents took no depositions, and respondents‟ motion for dismissal was "rote and mundane." A district court has "wide discretion in determining the type of sanctions it deems necessary." Peterson v. Hinz, 605 N.W.2d 414, 417 (Minn. App. 2000), review denied (Minn. Apr. 18, 2000). Gant does not cite to any legal authority for his argument that it was an abuse of discretion for the district court to grant sanctions of $8,460 for fees and costs incurred in bringing a successful motion to 8

dismiss. A district court "has the discretion to impose a sanction in the amount sufficient to deter future litigation abuse, even if the amount is greater than the amount of attorney fees." Gibson v. Trs. of Minn. State Basic Bldg. Trades Fringe Benefits Funds, 703 N.W.2d 864, 871 (Minn. App. 2005), vacated in part on other grounds (Minn. Dec. 15, 2005). We note that the district court imposed sanctions in an amount less than the amount of attorney fees expended by respondents.1 We therefore cannot say that the district court abused its discretion as to the amount of sanctions. III. Gant contends that the district court erroneously found that Phan had sought a protective order in the context of the Rosenbloom litigation. He argues that the district court based its decision that absolute privilege applied and that sanctions were warranted upon this factual error, requiring reversal. In its October 31, 2007 order and memorandum, the district court twice mentioned a protective order. First, the district court stated that the basis of McClure‟s defamation suit "was a protective order that Phan requested based on actions of [McClure] in the underlying litigation of [Rosenbloom]." Second, the district court stated: "Phan testified in an affidavit that she was afraid of McClure because in his deposition he had made comments about killing people that wronged him. The judicial proceeding concerned an order of protection to have a police officer in the courtroom."

1 The district court noted that it awarded respondents a reduced amount of costs because it believed that the legal work, namely the work on the issue of absolute privilege, was done in part for a defamation suit that Rosenbloom brought in state district court against respondents. That matter also involved Phan‟s February 27, 2007 affidavit. 9

We will not set aside findings of fact unless they are clearly erroneous. Minn. R. Civ. P. 52.01. "Findings of fact are clearly erroneous only if the reviewing court is left with the definite and firm conviction that a mistake has been made." Fletcher v. St. Paul Pioneer Press, 589 N.W.2d 96, 101 (Minn. 1999) (quotation omitted). The district court appears to be mistaken that Phan requested a protective order in Rosenbloom. The February 26, 2007 hearing involved Rosenbloom‟s and CSD‟s cross-motions for sanctions. The record does not contain any motion for a protective order brought by Phan or CSD in the context of Rosenbloom, and respondents concede that "technically, there was no request for a protective order" in Rosenbloom. We therefore conclude the district court‟s statement that Phan had requested a protective order in the Rosenbloom litigation was clearly erroneous.

But in order to prevail on appeal, an appellant must show both error and prejudice. Midway Ctr. Assocs. v. Midway Ctr., Inc., 306 Minn. 352, 356, 237 N.W.2d 76, 78 (1975); see also Minn. R. Civ. P. 61 (stating that harmless error is to be ignored). Gant, though he bears the burden of demonstrating that the error was prejudicial, does not explain how the erroneous statement prejudiced him. See Bloom v. Hydrotherm, Inc., 499 N.W.2d 842, 845 (Minn. App. 1993), review denied (Minn. June 28, 1993). We conclude that the district court‟s decision that Gant acted unreasonably by filing McClure‟s defamation lawsuit is adequately supported without the inclusion of the erroneous finding. See Hanka v. Pogatchnik, 276 N.W.2d 633, 636 (Minn. 1979) (stating that where findings necessary for a legal conclusion are adequately supported, a court‟s inclusion of other unsupported findings is harmless error). The nonexistence of a 10

protective order in Rosenbloom does not alter whether the statements in Phan‟s affidavit were absolutely privileged. Any error was therefore harmless. IV.

Gant argues that the district court should not have denied his October 3, 2007 motion for sanctions. At the October 11, 2007 motion hearing, respondents argued that Gant had failed to comply with the safe-harbor provision of Minn. R. Civ. P. 11. Gant did not respond to this contention. Rule 11 provides that a "motion for sanctions . . . shall not be filed with or presented to the court unless, within 21 days after service of the motion . . . , the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected." Minn. R. Civ. P. 11.03(a)(1). Minn. Stat. § 549.211, subd. 4, also contains a 21-day safe-harbor provision. Compliance with the safe-harbor provisions of the rule and the statute is mandatory. Gibson v. Coldwell Banker Burnet, 659 N.W.2d 782, 789–90 (Minn. App. 2003); see also Johnson v. Johnson, 726 N.W.2d 516, 519 (Minn. App. 2007) (reversing district court‟s award of attorney fees to respondent who had "fail[ed] to adhere to the mandatory „safe-harbor‟ provisions" of the rule and statute).

Gant signed his motion for sanctions on October 1, 2007, and filed it with the district court on October 3. There is no affidavit of service in the district court file. By filing his motion with the court a mere two days after signing it, Gant did not comply with the safe-harbor provisions of the rule and the statute. As compliance with the safe-harbor provisions is mandatory, the district court properly exercised its discretion by denying the motion. 11

Because we conclude that Gant‟s motion for sanctions was procedurally improper, we do not reach the issue of whether Gant had standing to make such a motion.

Affirmed.

Ross Nesbit Ag v. Atlantic MutInsCoA08-0725

http://www.mncourts.gov/opinions/coa/current/opa080725-0303.pdf

29. A08-725
Ross Nesbit Agencies, Inc., Appellant, vs. Atlantic Mutual Insurance
Company, Respondent; Dean Soltis, et al., Respondents.
Affirmed. Judge Louise Dovre Bjorkman.
Hennepin County District Court, Hon. Marilyn Brown Rosenbaum.

30. A07-1906
Fredy Rene Palma Espinal, petitioner, Appellant, vs. State of Minnesota,
Respondent.
Affirmed. Judge Gary L. Crippen.*
Washington County District Court, Hon. John Edward Cass.

31. A08-549
State of Minnesota, Respondent, vs. Douglas Lee Juelson, Appellant.
Affirmed. Judge Lawrence T. Collins.**
Itasca County District Court, Hon. Lois J. Lang.

SPECIAL RELEASE OPINION FILED FEBRUARY 26, 2009

32. A08-1312, A08-1551
In the Matter of the Civil Commitment of: Jacob Karl Rask.
Affirmed. Chief Judge Edward Toussaint, Jr.
Houston County District Court, Hon. Donald E. Rysavy.

---

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

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

---

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2008).

STATE OF MINNESOTA

IN COURT OF APPEALS

A08-0725

Ross Nesbit Agencies, Inc., Appellant, vs. Atlantic Mutual Insurance Company, Respondent, Dean Soltis, et al., Respondents.

Filed March 3, 2009

Affirmed

Bjorkman, Judge

Hennepin County District Court

File No. 27-CV-07-20510

Rolf E. Sonnesyn, Teresa A. Gumerman, Tomsche, Sonnesyn & Tomsche, P.A., 610 Ottawa Avenue North, Golden Valley, MN 55422 (for appellant)

Jon A. Hanson, Candy B. Olson, Hanson, Lulic & Krall, LLC, 700 Northstar East, 608 Second Avenue South, Minneapolis, MN 55402 (for respondent Atlantic Mutual Insurance Company)

Dean Soltis and Melissa Soltis, 15355 Brockton Lane North, Dayton, MN 55327 (pro se respondents)

Considered and decided by Klaphake, Presiding Judge; Peterson, Judge; and Bjorkman, Judge. 2

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

BJORKMAN, Judge

Appellant challenges the district court‟s dismissal under Minn. R. Civ. P. 12.02(e) of this declaratory-judgment action, arguing the court erred in determining that the complaint did not present a justiciable controversy. We affirm.

FACTS

Respondents Dean and Melissa Soltises‟ home sustained wind and hail damage on September 21, 2005. The Soltises submitted an insurance claim for the damage to respondent Atlantic Mutual Insurance Company. Atlantic Mutual denied coverage, asserting that appellant Ross Nesbit Agencies, Inc., and its principal Ross Nesbit, the independent insurance agent who prepared the insurance-policy quote for the Soltises, did not bind coverage for the Soltises. Nesbit Agencies acknowledges that it had not yet notified Atlantic Mutual of the Soltises‟ policy as of the date of loss, but nonetheless asserts that it bound coverage for a period from August 2, 2005, through August 2, 2006.

Nesbit Agencies subsequently asked the Soltises to assign their interests and claims against Atlantic Mutual arising out of the denial of coverage. In consideration for this proposed assignment, Nesbit Agencies agreed to adjust the Soltises‟ property-damage claim as if it were Atlantic Mutual and the proposed insurance policy had been in force on the date the damage occurred. The Soltises signed the agreement on September 20, 2007, but it was not fully executed until November 30, 2007.

On September 21, 2007, before the assignment was fully executed and before Nesbit Agencies had adjusted the Soltises‟ claim, Nesbit Agencies initiated this 3

declaratory judgment action against Atlantic Mutual and the Soltises, seeking a declaration that "Atlantic Mutual Insurance Company is obligated to insure Soltis[es] and the Property," and "Nesbit [Agencies] is entitled to indemnity from Atlantic Mutual Insurance Company for all monies Nesbit [Agencies] expends to adjust the Soltis[es‟] property insurance claim." The complaint alleges that Nesbit Agencies "stands ready to adjust the Soltis[es‟] September 21, 2005 property insurance claim in exchange for an assignment by Soltis[es] to Nesbit [Agencies] of Soltis[es‟] contractual rights against Atlantic Mutual Insurance Company." The complaint further alleges that Nesbit Agencies "asserts its right of indemnity against Atlantic Mutual Insurance Company under the anticipated assignment of rights and pursuant to the applicable principles of agency/principal law." Nesbit Agencies attached to its complaint a copy of the quote Atlantic Mutual proposed on July 27, 2005.

Atlantic Mutual moved to dismiss the complaint pursuant to rule 12.02(e) for failure to state a claim upon which relief can be granted. The district court granted Atlantic Mutual‟s motion, finding that the complaint fails to present a justiciable controversy, and dismissed Nesbit Agencies‟ claims without prejudice. This appeal follows.

D E C I S I O N

I. The district court dismissed this case under rule 12.

The submission to the district court of matters outside of the pleadings ordinarily converts a rule 12 motion to dismiss into a motion for summary judgment. Minn. R. Civ. P. 12.02. But a district court may consider, within the rule 12 framework, written 4

documents, such as contracts, if "the complaint refers to the contract and the contract is central to the claims alleged." In re Hennepin County 1986 Recycling Bond Litig., 540 N.W.2d 494, 497 (Minn. 1995). Nesbit Agencies contends that the district court considered the assignment document in connection with the rule 12 motion and that we should likewise consider it on appeal. We note the district court referenced Nesbit Agencies‟ attempt to "arrange an assignment of the Soltises[‟] rights in relation to Atlantic Mutual" in the memorandum accompanying the dismissal order, but observe that the district court expressly stated that no assignment had taken place. We conclude that rule 12 governs the scope of our review.

When reviewing cases dismissed under Minn. R. Civ. P. 12.02(e) for failure to state a claim on which relief can be granted, the only question we consider is "whether the complaint sets forth a legally sufficient claim for relief." Barton v. Moore, 558 N.W.2d 746, 749 (Minn. 1997).

II. The district court correctly concluded that Nesbit Agencies’ complaint fails to set forth a justiciable controversy.

The Uniform Declaratory Judgments Act (UDJA) gives courts the power to "declare rights, status, and other legal relations." Minn. Stat. § 555.01 (2008). Declaratory relief is a unique statutory remedy that serves an "important social function of deciding controversies at their inception." State Farm Mut. Auto Ins. Co. v. Skluzacek, 208 Minn. 443, 447, 294 N.W. 413, 415 (1940) (quotation omitted). But the UDJA "cannot create a cause of action that does not otherwise exist." Alliance for Metro. Stability v. Metro. Council, 671 N.W.2d 905, 916 (Minn. App. 2003); see also Hoeft v. 5

Hennepin County, 754 N.W.2d 717, 722 (Minn. App. 2008), review denied (Minn. Nov. 18, 2008) (addressing justiciability requirements in declaratory-judgment action).

The UDJA does not, by itself, confer jurisdiction on a court over the action. Alliance for Metro. Stability, 671 N.W.2d at 915. Rather, a declaratory-judgment action must present a justiciable controversy or a district court has no jurisdiction to declare rights under the act. Onvoy, Inc. v. ALLETE, Inc., 736 N.W.2d 611, 617 (Minn. 2007). A claim presents a justiciable controversy if it "(1) involves definite and concrete assertions of right that emanate from a legal source, (2) involves a genuine conflict in tangible interests between parties with adverse interests, and (3) is capable of specific resolution by judgment rather than presenting hypothetical facts that would form an advisory opinion." Id. at 617-18. Determining whether a justiciable controversy exists, and thus whether a district court has jurisdiction over a declaratory-judgment action, is a question of law, which we review de novo. Cincinnati Ins. Co. v. Franck, 621 N.W.2d 270, 273 (Minn. App. 2001).

Here, the district court found that Nesbit Agencies‟ complaint does not present a justiciable controversy because "[n]o claim has been brought by the Soltises against [Nesbit Agencies] and although Nesbit Agencies states that it stands ready to adjust the Soltises[„] claim, no assignment has taken place and the claim has not been adjusted." Nesbit Agencies argues the district court erred because Nesbit Agencies obtained the assignment from the Soltises of their breach-of-contract claim against Atlantic Mutual. We address each justiciability factor in turn. 6

A. Nesbit Agencies’ complaint does not present definite and concrete assertions of right that emanate from a legal source.

Nesbit Agencies‟ argument is premised on its claimed assignment of the Soltises‟ claim against Atlantic Mutual and agreement to adjust the Soltises‟ claim. In tacit recognition of the fact that no assignment was in effect at the time it initiated this action and no adjustment of the Soltises‟ claim has occurred, Nesbit Agencies argues it possesses "a bona fide legal interest which has been, or with respect to the ripening seeds of a controversy is about to be, affected in a prejudicial manner." State ex rel. Smith v. Haveland, 223 Minn. 89, 92, 25 N.W.2d 474, 477 (1946). Nesbit Agencies asserts that the ripening-seeds analysis applies because the policy it allegedly bound for the Soltises contained a two-year limitations provision, and it brought the declaratory judgment action within two years to avoid losing its right to assert a claim against Atlantic Mutual. We find Nesbit Agencies‟ argument unpersuasive.

The ripening-seeds analysis may relax the "present controversy" inquiry in declaratory-judgment actions, but it does not do away with the justiciability requirements. Rice Lake Contracting Corp. v. Rust Env’t & Infrastructure, Inc., 549 N.W.2d 96, 99 (Minn. App. 1996), review denied (Minn. Aug. 20, 1996). And unlike the cases Nesbit Agencies relies on, this case does not present a party with a bona fide legal claim. See, e.g., Holiday Acres No. 3 v. Midwest Fed. Sav. & Loan Ass’n of Minneapolis, 271 N.W.2d 445, 448-49 (Minn. 1978) (supreme court held that a property owner could obtain a declaration as to the validity of a "due-on-sale" clause before a proposed sale after already losing one potential buyer). It is undisputed that at the time Nesbit Agencies 7

served its complaint, it had not been sued by the Soltises, had not made any payment to the Soltises, and did not have an assignment of the Soltises‟ claim against Atlantic Mutual. At the time of the rule 12 hearing, Nesbit Agencies had still not been sued and had made no payments to the Soltises related to their property damage. The district court properly determined that declaratory judgments cannot be granted based on such remote contingencies. State ex rel. Sviggum v. Hanson, 732 N.W.2d 312, 322 (Minn. App. 2007) (quoting Seiz v. Citizens Pure Ice Co., 207 Minn. 277, 283, 290 N.W. 802, 805 (1940)).

Even if we look beyond the complaint and consider the assignment agreement that the Soltises and Nesbit Agencies executed after this action was commenced, the complaint fails to state a definite legal claim. By its terms, the assignment agreement does not represent a full assignment of legally enforceable rights to Nesbit Agencies. The agreement does not set forth an amount that Nesbit Agencies would pay to adjust and settle the Soltises‟ claim. Indeed, the agreement expressly permits the Soltises to sue Nesbit Agencies in the event they are unable to resolve the damage claim. Nesbit Agencies cannot assert a right based on an incomplete agreement that was not effective at the time the complaint was filed.

Nesbit Agencies also seeks a declaration that it is entitled to indemnity from Atlantic Mutual for any payments it eventually makes to adjust the Soltises‟ claim. This claim fails as well. A declaration that Atlantic Mutual is required to indemnify Nesbit Agencies for unspecified future payments would also be based on remote contingencies and thus improper for determination by declaratory judgment. Nesbit Agencies has not 8

made any payments to the Soltises and thus has not suffered a direct injury or loss for which it may be indemnified by Atlantic Mutual.1 B. Nesbit Agencies’ complaint does not present a genuine conflict in tangible interests between parties with adverse interests. Nesbit Agencies asserts its interests are adverse to Atlantic Mutual based on the assignment agreement. The district court rejected this claim, stating: The Complaint does not involve definite claims by parties with adverse interests. [Nesbit Agencies] cannot make a cognizable claim against Atlantic Mutual for indemnity and/or contribution where no claim for indemnity has been made against [Nesbit Agencies]. [Nesbit Agencies] has not suffered a direct injury, has not entered into a settlement agreement with the Soltises and has not paid any settlement amounts. We agree with the district court. Whether we consider the assignment agreement or not, this case does not involve parties with adverse interests. Nesbit Agencies has not adjusted the Soltises‟ damage claim and has not made any payments to the Soltises. The agreement contemplates litigation between the Soltises and Nesbit Agencies in the event no adjustment is made by agreement of the parties. Any legal claim based on Nesbit Agencies‟ payment on Atlantic Mutual‟s behalf is speculative.

1 At oral argument, Nesbit Agencies‟ attorney informed this court that the Soltises initiated suit against Nesbit Agencies approximately two months earlier.

Nesbit Agencies alternatively contends that the second prong of justiciability is met because, under agency-law principles, it has an independent cause of action against Atlantic Mutual for wrongfully denying coverage to the Soltises. Nesbit Agencies claims "the law implies a promise of indemnity from a principal to his agent for any damages 9

resulting from the acts of the agent in the good faith execution of that agency," citing the Restatement (Third) of Agency § 8.14 (2006).

But, absent a contract between them, any cause of action Nesbit Agencies might have against Atlantic Mutual for indemnification would be available only "when the agent makes a payment" or "when the agent suffers a loss that fairly should be borne by the principal in light of their relationship." Restatement (Third) of Agency, § 8.14(2)(a), (b). Neither of these events has taken place here because Nesbit Agencies has not yet adjusted the Soltises‟ claim. Moreover, Nesbit Agencies offers no explanation as to why or how its failure to notify Atlantic Mutual of the fact that it bound coverage for the Soltises constitutes good-faith execution of its agency. Under these circumstances, the district court did not err in concluding that the complaint "does not involve definite claims by parties with adverse interests."

C. Nesbit Agencies’ complaint does not present a claim that is capable of specific resolution by judgment.

Nesbit Agencies contends the district court erred when it found that "[a]ny ruling . . . would result in a premature, advisory opinion based upon hypothetical facts or anticipated events." We disagree.

Nesbit Agencies‟ complaint requests declaratory relief based on contingent future events that, at the time Nesbit Agencies served the complaint, were only anticipated occurrences. Even if the district court issued a declaration that coverage existed, the action could not be fully resolved until Nesbit Agencies adjusts the Soltises‟ damage claim and makes a settlement payment. Such circumstances do not meet the justiciability 10

requirements for declaratory judgment; to be justiciable a matter must be "capable of specific resolution by judgment rather than presenting hypothetical facts that would form an advisory opinion." Onvoy, Inc., 736 N.W.2d at 618.

Because Nesbit Agencies‟ complaint fails to set forth a justiciable controversy, the district court did not err in dismissing its claims without prejudice pursuant to rule 12.02(e).

Affirmed.

Daniel E. Olean Appel v. James E. Pomroy A08-878

http://www.mncourts.gov/opinions/coa/current/opa080878-0303.pdf

11. A08-878
Daniel E. Olean, Appellant, vs. James E. Pomroy, et al., Respondents.
Affirmed in part, reversed in part, and remanded. Judge Terri J.
Stoneburner.
Pine County District Court, Hon. James T. Reuter.Court of Appeals Unpublished Opinions

This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2008).

STATE OF MINNESOTA IN COURT OF APPEALS A08-0878 Daniel E. Olean, Appellant, vs. James E. Pomroy, et al., Respondents. Filed March 3, 2009 Affirmed in part, reversed in part, and remanded Stoneburner, Judge Pine County District Court File No. 58C603000846 Paul Sortland, Sortland Law Office, 120 South Sixth Street, Suite 1510, Minneapolis, MN 55402-1817 (for appellant) Frank J. Rajkowski, Rajkowski Hansmeier Ltd., 11 Seventh Avenue North, P.O. Box 1433, St. Cloud, MN 56302 (for respondents)

Considered and decided by Shumaker, Presiding Judge; Stoneburner, Judge; and Collins, Judge.*

* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10. 2

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

STONEBURNER, Judge

The district court found in favor of respondent on appellant’s claims for injunctive relief and for damages allegedly caused by improvements to a driveway on respondents’ property that resulted in the flooding of a portion of appellant’s land. Appellant challenges the denial of his motion for relief from judgment or a new trial, arguing that the district court’s findings of fact are not supported by the record and that the district court erred or abused its discretion in (1) denying his request for a jury trial; (2) finding that respondents’ use of property was reasonable; (3) dismissing appellant’s claim under the Minnesota Environmental Rights Act; (4) denying appellant’s motion to add a claim of punitive damages; (5) denying appellant’s posttrial submission of additional evidence; and (6) awarding certain disbursements. We affirm the district court’s judgment for respondents but reverse the award of disbursements and remand for additional findings relating to some of the claimed disbursements.

FACTS

Appellant Daniel E. Olean owns property in section 28 of Pine County that has been in his family for more than 100 years. A portion of the property is wetland. In 1999, respondents Lori Pomroy and Jim Pomroy (Pomroy) bought property that includes wetland north of and adjacent to Olean’s wetland. Pomroy bought the property to use as recreational property. Surface water flows north through the wetland and eventually into Bremer Creek, a public waterway. 3

The building site on Pomroy’s property is accessed by an east-west driveway that crosses the wetland. Pomroy’s predecessor placed a culvert covered with eight to ten inches of rock and gravel in the lowest portion of the driveway. In wet conditions, or if the culvert became plugged, water flowed across the driveway, making access to the building site by vehicle difficult or impossible at times. In 2001, Pomroy decided to raise the driveway.

Representatives of the Pine County Soil and Water Conservation District visited the site and determined that Pomroy’s proposed driveway improvement, which involved placing fill primarily on the traveled portion of the driveway rather than in the wetlands, would fall within a "de minimis" exception to the Wetlands Conservation Act and would not require a wetland replacement plan.

Pomroy contracted with Dean Pogatchnik, a local bridge builder, to raise the level of the driveway and install a 12-inch culvert with a Clemson leveler (a device designed to keep the culvert from clogging). Neither Pomroy nor Pogatchnik consulted with anyone concerning the effect that elevating the driveway would have on the water flow. Olean contends, but Pomroy denies, that Olean told Pomroy that the planned improvement to the driveway would flood Olean’s property.

Pogatchnik raised the driveway in the winter of 2001 when the ground was frozen. Pogatchnik trenched the sides of the driveway to create a shoulder, put in the 12-inch culvert "close to the top of the old road" and added 30 ten-cubic-yard loads of fill from nearby higher ground and a layer of gravel to the driveway surface. 4

In April 2002, Olean discovered that the elevated driveway was acting as a dam, causing water to be impounded two feet higher on the south side of the driveway and flooding approximately 29 acres of Olean’s land that had not previously had standing water. Olean notified Pomroy, who discovered that the Clemson leveler in the 12-inch culvert was plugged with debris due, in part, to the fact that the Clemson leveler had been installed backward. Pomroy immediately contacted Pogatchnik, who, within two days, cut a trench in the driveway to drain the water then installed a 32-inch culvert and reinstalled the 12-inch culvert. The Clemson leveler was badly damaged when it was removed from the 12-inch culvert, but what remained was reinstalled correctly in the 12-inch culvert. An additional 16-inch pipe was also installed through the driveway. Since that time, the water has remained level on both sides of the driveway, but at a higher level than before the driveway was raised.

There are beaver dams on Pomroy’s property north (downstream) of the driveway. Olean, who asserts that Pomroy told him that the purpose of raising the driveway was to create a lake on Pomroy’s property, contends that Pomroy also altered the height of the beaver dams to facilitate creation of a lake. Pomroy, who denies that he ever intended to create a lake, admits having altered the beaver dam or dams, but asserts that all alterations were attempts to keep water flowing through the dams rather than to raise the height of the dams to impound water. The first beaver dam downstream of the driveway washed out in 2003, but the beaver raised the height of downstream "coffer dams," raising the water level on the subject properties. Pomroy and his witnesses testified, and the district court found, that these natural beaver dams plus unnaturally high amounts of 5

rainfall, rather than the driveway, have caused water to remain on Olean’s property. Pomroy will not permit the beaver dams to be destroyed or lowered.

Olean continues to have standing water on portions of his property that had not had standing water for at least 80 years prior to the driveway improvements. Olean and his witnesses testified that the standing water has damaged and killed trees on his property, and Olean testified that the land can no longer be used for hunting. He sued Pomroy in June 2003, seeking injunctive relief to restore his property to its pre-driveway-improvement condition and for damages.1 The case was set for a jury trial to begin on November 15, 2004, but was removed from the calendar pending resolution of discovery motions and Olean’s motion to amend the complaint. Those motions were resolved in mid-January 2005, after which Olean amended the complaint to add a claim for injunctive relief under the Minnesota Environmental Rights Act (MERA), Minn. Stat. § 116B.03 (2004).

1 The parties dispute the measure of damages applicable to Olean’s claims. Olean sued for treble damages for the value of damaged trees plus costs of replanting. Pomroy asserted that the only measure of damages applicable is the diminution, if any, in the value of the affected land. At one point in this lengthy litigation, Pomroy sought to extend discovery deadlines to obtain an appraisal of the affected land. Olean objected. The district court denied the motion based on the parties’ acknowledgement that the applicable measure of damages is a matter of law for the court. The record does not reflect that the district court ever ruled on the issue, and the applicable measure of damages is not before us in this appeal.

Counsel for the parties participated in an unreported telephone scheduling conference on January 24, 2005, that resulted in an amended scheduling order setting the matter for a court trial on May 4, 2005. The order states that "the parties have waived a 6

jury trial."2 The case was called for trial on May 4, but was continued because a child-protection trial had priority. According to an affidavit of Pomroy’s attorney, the jury waiver was discussed on May 4, and Olean’s attorney conferred with Olean about the waiver, after which both parties confirmed to the district court that a jury was waived. The matter was rescheduled for a court trial in September 2005. Trial was again delayed by military deployment of Olean’s original attorney. Another telephone scheduling conference took place on October 14, 2005, in which Olean was represented by his current attorney. An amended scheduling order was issued the same day, setting the matter for a court trial on March 6, 2006. On January 31, 2006, Olean moved for a jury trial, a stay, and for an order compelling discovery. The request for a stay was based on the request for a jury trial and on the fact that Olean was severely injured in an explosion and would not be able to participate in the trial as scheduled. The motions were not heard as scheduled because the parties stipulated to a continuance. In September 2006, Olean renewed his motion for a jury trial and to compel discovery. Pomroy objected to the request for a jury trial, asserting the prior waiver of a jury trial and prejudice from any further delay. The district court denied Olean’s request for a jury trial based on the waiver. The matter was again scheduled for a court trial. Olean moved to add a claim for punitive damages. The motion was denied.

2 A footnote to findings of fact in the district court’s order denying Olean’s motion for a new trial states: "This waiver of a jury trial is noted in [presiding judge’s] handwritten hearing notes of January 24, 2005." But the referenced notes are not part of the record. 7

The matter was tried to the district court over three days in August 2007. The record was held open until September 21, 2007, for submission of written arguments. On September 21, Olean sought to introduce additional documentary evidence, but the district court declined to accept additional evidence. In November 2007, the district court issued its opinion concluding that Olean failed to show that Pomroy had caused water damage to Olean’s land and trees and dismissing all of Olean’s claims. Pomroy petitioned for costs and disbursements. Olean objected to some of the claimed disbursements and moved for judgment as a matter of law or a new trial. The district court denied Olean’s motions and ordered him to pay Pomroy $12,174.62 in costs and disbursements within 60 days of the order. This appeal followed.

D E C I S I O N

The district court has the discretion to grant a new trial, and we will not disturb the decision absent a clear abuse of that discretion. Halla Nursery, Inc. v. Baumann-Furrie & Co., 454 N.W.2d 905, 910 (Minn. 1990).

I. The district court did not abuse its discretion by denying Olean’s request for a jury trial

Olean argues that he is entitled to a new trial because he was denied his right to a jury trial. Minn. R. Civ. P. 38.02 provides, in relevant part, that with permission of the district court, a party may waive a jury trial by "oral consent in open court, entered in the minutes." Pomroy argues that Olean, through counsel, waived a jury trial in the first unreported telephone scheduling conference and again in court on May 4, 2005. But it is doubtful that a telephone conference constitutes "open court." See Black’s Law 8

Dictionary 1118 (7th ed. 1999) (noting that "open court" usually refers to a proceeding in which formal entries are made on the record, and defining the term, in part, as "[a] court session that the public is free to attend"). And the record does not reflect that a jury-trial waiver was entered in the minutes at either proceeding. On this record, we cannot conclude that Olean validly waived a jury trial under rule 38.02.

We have previously reversed the denial of a motion for a new trial where a party was entitled to a jury trial and the record did not demonstrate a waiver in any manner specified under rule 38.02. Peterson v. Steinmaus, 393 N.W.2d 693, 694 (Minn. App. 1986). But we conclude that Olean is not entitled to a new trial in this case because the record reflects a valid waiver of a jury trial by means other than rule 38.02, and Olean was not constitutionally entitled to a jury trial in this matter.

Prior to the January 1, 1952 effective date of the Rules of Civil Procedure, waiver of a civil jury trial was governed by Minn. Stat. § 546.26 (1952). The supreme court held that the statutory methods of waiver, which are identical to those contained in rule 38.02, are not exclusive if the intention to waive a jury trial by another method is clear and unequivocal. Roske v. Ilykanyics, 232 Minn. 383, 390, 45 N.W.2d 769, 774 (1951). Because waiver under the rule is identical to waiver under the superseded statute, we conclude that likewise, rule 38.02 is not the exclusive method of waiver. In this case, the district court issued two scheduling orders setting the matter for a court trial and one of the orders recites the parties’ waiver of a jury trial. Olean’s failure to object to either of these orders evinces a clear and unequivocal intention to waive a jury trial. The district court did not err in concluding that Olean effectively waived a jury trial. 9

Olean argues that if there was an effective waiver, the district court abused its discretion by failing to allow him to withdraw the waiver. See Blenda Life Corp. v. Blenda Life, Inc., 293 Minn. 448, 451, 196 N.W.2d 925, 926 (1972) (stating that the district court has discretion whether or not to grant a motion to withdraw a jury-trial waiver). But Olean never moved the district court to withdraw his waiver. And based on Pomroy’s objection to Olean’s later request for a jury trial asserting that he would be prejudiced by further delay in the already protracted litigation, we cannot conclude that denial of a motion to withdraw the waiver would have constituted an abuse of discretion.

Pomroy first questioned Olean’s right to a jury trial in opposition to Olean’s motion for a new trial. The district court did not address Olean’s right to a jury trial, but both parties have briefed the issue on appeal. Where consideration of an issue is required in the interest of justice, the parties have had adequate briefing time, and the issues were implied in the district court, we make an exception to the general rule that we do not address issues that were not fully argued to and considered by the district court. Tischendorf v. Tischendorf, 321 N.W.2d 405, 410 (Minn. 1982); see Minn. R. Civ. App. P. 103.04 (allowing appellate courts to address issues in the interests of justice). We conclude that the requisite conditions exist to permit review of Olean’s right to a jury trial in this appeal.

Pomroy relies on the holding in Koeper v. Town of Louisville to argue that, in an action for both equitable and legal relief, neither party is entitled to a jury trial as a matter of right. 109 Minn. 519, 124 N.W. 218 (1910). The facts in Koeper are very similar to this case. Koeper sued to compel a town to close an opening it made in a lake bank 10

during a highway improvement. Koeper claimed that the opening caused flooding on his land. Id. at 520, 124 N.W. at 218. Koeper sought both injunctive relief and damages. Id. at 521, 124 N.W. at 218. The district court denied Koeper’s request for a jury trial and found for the town. Id. Koeper appealed, claiming that he was wrongfully denied a jury trial. Id.

The supreme court stated that whether Koeper was entitled to a jury trial depends on the character of his cause of action, noting that a party has a constitutional right to a trial by a jury of a legal cause of action, even if an equitable cause of action is asserted as a counterclaim. Id. (citing Lace v. Fixen, 39 Minn. 46, 38 N.W. 762 (1888)). But the supreme court stated:

There is a clear distinction between cases . . . where two causes of action, one legal and the other equitable, are united in the same action, and those where the cause of action is an equitable one, in which equitable relief is sought, and also legal relief as an incident to the equitable cause of action; for example, a claim for damages growing out of the facts upon which the equitable relief depends. The rule in cases of this kind is that in an action not of a strictly legal nature, where the plaintiff seeks both equitable and legal relief, neither party is entitled to a jury trial as a matter of right.

Koeper, 109 Minn. at 521–22, 124 N.W. at 218–19. We conclude that Olean’s cause of action is not distinguishable from the cause of action involved in Koeper; that Olean, like Koeper, was not entitled to a jury trial as a matter of right; and, therefore, Olean is not entitled to a new trial based on the district court’s denial of his request for a jury trial.

II. The district court correctly applied the doctrine of reasonable use 11

On appeal, Olean asserts that this case involves impoundment of a natural water course rather than diversion of surface waters, making it "questionable as to whether or not the doctrine of reasonable use even applies to this situation."

In determining liability for the obstruction or diversion of minor natural and artificial drainways or channels for the drainage of waters this court has uniformly applied the law relating to surface waters . . . .

"Each possessor (of land) is legally privileged to make a reasonable use of his land, even though the flow of surface waters is altered thereby and causes some harm to others. He incurs liability only when his harmful interference with the flow of surface water is unreasonable. The issue of reasonableness or unreasonableness is a question of fact to be determined in each case upon a consideration of all the relevant circumstances, including such factors as the amount of harm caused, the foreseeability of the harm on the part of the possessor making the alteration in the flow, the purpose or motive with which he acted, and others."

Collins v. Wickland, 251 Minn. 419, 425, 88 N.W.2d 83, 87-88 (1958) (citing Stanley V. Kinyon & Robert C. McClure, Interferences with Surface Waters, 24 Minn. L. Rev. 891, 904 (1940)).

There is ample evidence in the record to support the district court’s conclusion that this case involves drainage of surface waters rather than alteration of a natural water course. The district court did not err in applying the doctrine of reasonable use.

III. There is evidence in the record supporting the district court’s findings on reasonable use and causation

The parties presented conflicting evidence about why and how the driveway was raised and who or what caused water to be impounded on Olean’s property. "It is not the province of this court to reconcile conflicting evidence. On appeal, a trial court’s 12

findings are given great deference, and shall not be set aside unless clearly erroneous . . . . If there is reasonable evidence to support the trial court’s findings of fact, a reviewing court should not disturb those findings." Fletcher v. St. Paul Pioneer Press, 589 N.W.2d 96, 101 (Minn. 1999).

Olean presented evidence that (1) Pomroy raised the driveway as much as four feet, intending to create a lake on his property deep enough to maintain fish through the winter; (2) the bottom of the culverts in the raised driveway are higher than the level of the original driveway surface such that water cannot begin to drain until the water is at a higher level than was possible when water could flow over the original driveway; (3) the culverts are too few and too small to permit the volume of flow necessary to drain Olean’s land at the same rate that was permitted by the original driveway, causing water to stand longer and at higher levels on Olean’s property; (4) 29 acres of Olean’s previously dry land are under water due to Pomroy’s driveway improvements; (5) Pomroy has directly or indirectly increased the height of downstream beaver dams, which also caused water to be impounded on Olean’s property; and (6) the high water caused by Pomroy has killed trees on Olean’s property and destroyed hunting land.

The district court plainly rejected Olean’s evidence and credited Pomroy’s evidence that (1) the only purpose of raising the driveway was to make his land consistently accessible by vehicle; (2) the driveway was raised only about 21 inches from the old driveway surface and culverts were installed to permit drainage at the same level and volume as before the driveway was raised; (3) Pomroy did not directly or indirectly 13

raise the height of downstream beaver dams; and (4) higher-than-average rainfall and beaver activity are the sole causes of increased water on Olean’s property. Based on Pomroy’s evidence, the district court found that (1) raising the driveway had no appreciable effect on the water level on Olean’s property after May 2002; (2) Olean’s tree damage was caused solely by high levels of precipitation between 2001 and 2003 combined with beaver activity; (3) raising the driveway constituted reasonable use of Pomroy’s property; and (4) Pomroy could not reasonably have foreseen any substantial harm that would result from the manner in which the driveway was raised. Because there is evidence in the record to support the district court’s findings and the findings are not manifestly and palpably contrary to the evidence as a whole, we will not disturb these findings on appeal, even though we might have found the facts to be different if we had the fact-finding function. See Grant v. Malkerson Sales, Inc., 259 Minn. 419, 425–26, 108 N.W.2d 347, 351 (1961). IV. The district court did not err in dismissing Olean’s MERA claims The MERA provides, in relevant part, that a person may maintain a civil action for equitable relief to protect natural resources from impairment or destruction. Minn. Stat. § 116B.03, subd. 1 (2008). The district court dismissed all of Olean’s claims without specifically addressing the MERA claim.

Pomroy asserts that Olean’s MERA claim was properly dismissed as without merit and as untimely,3 noting that Olean did not serve the attorney general and the Minnesota

3 The parties do not dispute that the two-year statute of limitations for improvements to real property applies to the MERA claim in this case. See Minn. Stat. § 541.051 (2004). 14

Pollution Control Agency, as required by the MERA, until 2007. Olean argues that because his amended complaint relates back to his original complaint, the action was timely. Neither party has briefed or argued the effect of late service on the relation-back doctrine, but we need not reach this issue. Because we are affirming the district court’s findings that Pomroy’s acts are not the cause of any of the environmental effects asserted by Olean and had no appreciable effect on the public waters of Minnesota, Olean failed to make a prima facie case under the MERA. See Minn. Stat. § 116B.04 (2008) (stating that a plaintiff under the MERA has the burden to make a prima facie showing that the defendant’s conduct "has, or is likely to cause the pollution, impairment, or destruction of the air, water, land or other natural resource located within the state"). Therefore, the district court did not err by dismissing Olean’s MERA claims.

V. The district court did not abuse its discretion by rejecting posttrial evidence

Olean argues that the district court should have permitted him to supplement the trial record with "newly discovered" evidence from the county soil and water conservation district. We review denials of motions to consider new evidence under an abuse-of-discretion standard. Zander v. Zander, 720 N.W.2d 360, 364 (Minn. App. 2006), review denied (Minn. Nov. 14, 2006). The district court found that all of the documents that Olean sought to introduce were available to him before trial. See Minn. R. Civ. P. 59.01(d) (describing newly discovered evidence as "[m]aterial evidence newly discovered, which with reasonable diligence could not have been found and produced at the trial"); Bruno v. Belmonte, 252 Minn. 497, 503, 90 N.W.2d 899, 903 (1958) (stating that for newly discovered evidence to be considered, the moving party must show that it 15

exercised "proper diligence" to discover it before trial). Olean asserts that he had requested the documents but they were withheld and only turned over when the county attorney became involved after the trial. But Olean never attempted to depose anyone who could have produced these documents or to subpoena these documents during the years of discovery that preceded the trial. On this record, the district court did not abuse its discretion in rejecting Olean’s posttrial evidence. VI. The issue of punitive damages is moot Olean argues that he established a sufficient basis to support a claim for punitive damages under Minn. Stat. § 549.20, subd. 1 (2008), and the district court abused its discretion by denying his motion to add a claim for punitive damages. Because we are affirming dismissal of Olean’s action, the issue of punitive damages is moot. See Obermoller v. Federal Land Bank of St. Paul, 409 N.W.2d 229, 230–31 (Minn. App. 1987) (stating that an issue is moot when a determination is sought on a matter, which, when made, will not have any practical effect or will make no difference with respect to the controversy on the merits), review denied (Minn. Sept. 18, 1987). VII. The district court’s award of disbursements is not supported by sufficient findings or authority

The district court awarded Pomroy $12,174.62 in costs and disbursements, over Olean’s objections, without a hearing.4 The prevailing party in a district court action "shall" be allowed costs and "reasonable disbursements." Minn. Stat. §§ 549.02, .04

4 Olean does not challenge the award of costs under Minn. Stat. § 549.02 (2008). His challenge is to certain disbursements awarded under Minn. Stat. § 549.04 (2008). Many cases improvidently use the phrase "costs and disbursements" in discussing disbursements under section 549.04. 16

(2008). The amount of disbursements awarded is within the district court’s discretion and will not be reversed on appeal unless there is an abuse of discretion. Stinson v. Clark Equip. Co., 473 N.W.2d 333, 336 (Minn. App. 1991), review denied (Minn. Sept. 13, 1991). When reviewing a request for disbursements, the district court must make sufficient findings that the disbursements were reasonable and necessary disbursements. Id. at 338.

In Beniek v. Textron, Inc., we quoted Stinson for the proposition that to make the required findings, the district court must "take oral testimony of all [disbursements] with full opportunity for both direct and cross-examination so a full record is available for review." 479 N.W.2d 719, 724 (Minn. App. 1992) (citation omitted), reviews denied (Minn. Feb. 19, 27, 1992). In Buller v. A. O. Smith Harvestore Prods. Inc., 518 N.W.2d 537, 543 (Minn. 1994), the supreme court noted that Minn. R. Civ. P. 54.04 does not require the trial court to conduct a hearing to determine the reasonableness of alleged disbursements. But, in this case, Pomroy’s claimed disbursements are sparingly documented, and Olean had no opportunity to challenge the request. The district court made only one conclusory finding that all amounts claimed were reasonable. On this record, we conclude that the district court erred in this case by failing to conduct a hearing on Olean’s objections.

It is undisputed that the procedures set out in Minn. R. Civ. P. 54.04 and Minn. R. Gen. Pract. 127 were not followed in this case. Nothing in the record explains why the rules were not followed. Pomroy filed notice of taxation and Olean objected, but the court administrator failed to take any action and the matter was unresolved until the 17

district court, in its order denying Olean’s posttrial motion, made a conclusory finding that the "costs and disbursement records as submitted by [Pomroy] [are] a fair and reasonable taxation of costs to be paid by [Olean]" and ordered Olean to pay the full amount awarded within 60 days.5 Because the procedure employed deprived Olean of the opportunity to meaningfully challenge the amounts claimed and the district court failed to provide adequate findings to support the award, we reverse the award of disbursements and remand for further proceedings to determine the reasonableness and necessity of disbursements authorized by law, consistent with this opinion. a. Lost vacation time and mileage for counsel and parties are not recognized disbursements The district court awarded Pomroy $3,090.00 for "lost vacation time for mandatory court appearances." There is no documentation supporting this "loss" or how it was calculated, and there is no explanation of how this claim constitutes a reasonable disbursement "paid or incurred" under Minn. Stat. § 549.04. We conclude that such an award is, as a matter of law, not a disbursement contemplated by the statute and reverse the award for "lost vacation time."

5 Pomroy claimed $12,311.62 in costs and disbursements. Despite the court’s finding that the records Pomroy submitted represented fair and reasonable costs and disbursements, the court awarded Pomroy only $12,174.62. Our analysis uses the amount Pomroy claimed for each particular disbursement because the court’s findings are devoid of information regarding how much of the total award was allotted for each particular disbursement.

The district court awarded $1,441.40 for mileage for Pomroy and his attorney. There is no recognized practice in Minnesota of awarding mileage to a party or a party’s counsel as a disbursement under section 549.04. Taxation of section 357.22 witness fees, 18

which caps travel expenses at .28 cents per mile, is a recognized practice in Minnesota, but there is no authority for awarding witness fees to parties appearing on their own behalf or to their counsel. See Barry v. McGrade, 14 Minn. 286, 14 Gil. 214, 215, (1869) (noting that an attorney is not entitled to fees for attending hearings as a witness, and a party is entitled to witness fees only when it appears that the party is acting solely as a witness for co-parties). We conclude that mileage expenses for parties and counsel are not disbursements under section 549.04 and reverse the mileage award for Pomroy and his attorney.

b. Expert witness fees

The district court awarded Pomroy $4,882.91 in expert-witness fees based solely on an attachment to counsel’s affidavit showing that this amount was paid by Pomroy’s insurer to Pomroy’s expert witness. Olean objected to the amount claimed as excessive and unsubstantiated.

The judge of any court of record may allow expert-witness fees or compensation "as may be just and reasonable." Minn. Stat. § 357.25 (2008). Allocation of expert-witness fees to the prevailing party in an award of costs and disbursements has long been recognized practice in Minnesota. See Kundiger v. Metro. Life Ins. Co., 218 Minn. 273, 286, 15 N.W.2d 487, 495 (1944) (noting that allowance of expert-witness fees to prevailing party "was made by order of the trial court . . . according to recognized practice"). Minn. R. Gen. Pract. 127 permits the court administrator, on appropriate affidavit, to award up to $300 per day for expert-witness fees, subject to increase or decrease by the judge. But the limitation on the amount and the exclusion from a court 19

administrator’s award of costs for an expert witness’s preparation or experiments outside the court room, do not apply to an award by the judge. Quade & Sons Refrigeration Inc. v. 3M, 510 N.W.2d 256, 260 (Minn. App. 1994) (noting that section 357.25 permits a judge to allow expert-witness fees "as may be just and reasonable"), review denied (Minn. Mar. 15, 1994).

In this case, the district court made no findings concerning the expert-witness fees. On remand, we instruct the district court to reopen the record to permit direct and cross-examination on the reasonableness and necessity of the claim and to make appropriate findings based on the record established.

c. Miscellaneous expenses

Over Olean’s objections, Pomroy was awarded $340.00 in motion and fax fees, $299.80 in subpoena-service fees, and $20.00 in parking fees. Minn. Stat. § 357.09, subd. 1(1), permits the sheriff to charge and collect fees established by the county board for serving subpoenas, and Minn. Stat. § 549.04, subd. 1, specifically includes fees for service of process as a taxable disbursement. But in this case the documentation provided to support the service fees does not match the amount requested. On remand, the district court must make findings supported by the record on the reasonable amount of such fees.

The district court has discretion to award miscellaneous costs, including photocopying, long-distance telephone calls, fax charges, parking, and courier services. Stinson, 473 N.W.2d at 338. Again, a request for such disbursements must be supported with evidence of the disbursement. Here, Pomroy’s attorney submitted a bill that lists fax 20

fees but no documentation about what was faxed to whom. Olean should be given an opportunity to challenge reasonableness of miscellaneous expenses claimed, Pomroy should have an opportunity to respond to Olean’s objections, and the district court must make findings specific to each challenged request.

Affirmed in part, reversed in part, and remanded.