author: WRIGHT, Judge.

text:
    Kent DUXBURY, et al., Respondents, v. SPEX FEEDS, INC., Appellant, David Shanahan, Respondent.
    No. A03-1456.
    Court of Appeals of Minnesota.
    June 15, 2004.

      Peter C. Sandberg, Kari C. Stonelake-Hopkins,. Dunlap & Seeger, P.A., Rochester, MN, and Scott Kerry Springer, Adams, Rizzi & Sween, P.A., Austin, MN, for appellant.
    Charles A. Bird, Jeremy R. Stevens, Bird & Jacobsen, Rochester, MN, for respondents Kent Duxbury, et al.
    Scott V. Kelly, Aaron J. Glade, Farrish Johnson Law Office, Mankato, MN, for respondent David Shanahan.
    Considered arid decided by WRIGHT, Presiding Judge; SCHUMACHER, Judge; and WILLIS, Judge.
   OPINION

WRIGHT, Judge.

Respondents-farmers brought an action against appellant-feed producer after feed manufactured by appellant caused illness in respondents’ gestating sows. A jury returned a verdict in respondents’ favor on their claims of negligence, products liability, consumer fraud, and breach of express and implied warranties. Appellant moved for judgment notwithstanding the verdict (JNOV), challenging both the legal and factual bases for the verdict. The district court denied the motion. We affirm in part, reverse in part, and remand.

FACTS

Respondents Ken, Vickey, Steven, and Marlys Duxbury are farmers who raise corn and hogs. In February 2000, the Duxburys’ sows began having gestational problems. When veterinarians were unable to confirm that an infectious disease was the source of the problem, the Dux-burys had their hogs’ feed tested in spring and summer 2000. This testing showed toxins in the feed. After the Duxburys discontinued use of the feed in August 2000, their sows recovered.

The Duxburys received the suspect hog feed from appellant Spex Feeds, Inc. Spex manufactures and sells feed and feed additives. Spex also operates a “grain bank” at which farmers deposit corn and receive a proportional share of the corn commingled in the bank. In 1999, the Spex grain bank comprised deposits from 38 farmers in nine grain bins.

In 1998 and 1999, the Duxburys deposited corn in the Spex grain bank. In late 1999, the Duxburys arranged for Spex to provide hog feed from their share in the grain bank. They allege that Spex did not take reasonable steps to control moisture levels or monitor for mold or toxins in the grain bank.

Spex manufactured the feed by grinding grain bank corn and mixing in soybean meal, medicines, and nutritional supplements. The feed additives and supplements made up approximately 12 to 14 percent of the feed. The Duxburys were charged for all components of the feed except the corn. They also were charged a fee for the grinding, mixing, and delivery of the feed.

Respondent David Shanahan, a salesperson for Spex, had been selling feed to the Duxburys since 1990. In 1997, Shanahan invested in the Duxburys’ hog farming operation. In return, he received 20 percent of the sows’ surviving newborn pigs. Aside from assisting the Duxburys in the course of his employment at Spex, Shana-han did not participate in the management or operation of the Duxburys’ farm and did not share in their profits or losses.

In October 2001, the Duxburys brought an action against Spex. Under the terms of a stipulation between the Duxburys and Spex, Shanahan was joined as a co-defendant. According to Spex’s theory, Shana-han was a joint venturer whose knowledge about Spex should be imputed to the Dux-burys. The case proceeded to trial. Following Shanahan’s testimony, the district court held as a matter of law that a joint venture between Shanahan and the Dux-burys did not exist and dismissed the claims against Shanahan.

Later during the trial, the Duxburys called Dr. Michael Behr, a forensic economist, who testified about the losses suffered by the Duxburys. Without taking into account inflation, he determined a total loss of $246,230. He calculated an additional $39,730 to account for inflation from the time of the losses.

Following an extensive charge conference, the jury was instructed on negligence, products liability, consumer fraud, and violation of express and implied warranties. The jury returned a verdict for the Duxburys, assessed comparative fault of 90 percent to Spex and 10 percent to the Duxburys, and awarded $247,000 in damages and $25,000 in interest.

Spex brought a motion for JNOV or a new trial, which the district court denied. This appeal followed.

ISSUES,

I. Is the Uniform Commercial Code’s “sale” requirement satisfied when a grain bank depositor, regulated under Minn. Stat. ch. 236, purchases feed from the grain bank?

II. Did the district court err in formulating the special verdict form for the claims brought under the Minnesota Consumer Fraud Act?

III. Does the Minnesota Commercial Feed Law supply a negligence per se standard for grain bank operators?

IV. Did the district court err in concluding as a matter of law that the Duxburys and Shanahan did not engage in a joint venture?

V. Does prejudgment interest calculated under Minn.Stat. § 549.09 preclude a jury award of interest on damages?

VI. Is there sufficient evidence to support the verdict?

• ANALYSIS

I.

Spex argues that, because under the grain bank statutes the Duxburys kept title to the corn used to manufacture the feed, the “sale” requirement under the Uniform Commercial Code was not satisfied. See generally Minn.Stat. §§ 236.01, .03 (grain bank provisions), .2-106, .2-313, .2-314(UCC) (2002). As a result, Spex contends, the remedies of warranty and products liability are not available. In addressing this issue, we consider the scope and effect of regulation in this field to determine whether these remedies are abrogated. We review de novo questions of law, including matters of statutory interpretation. Modrow v. JP Foodservice, Inc., 656 N.W.2d 389, 393 (Minn.2003).

The licensing and operation of grain banks is governed by Minn.Stat. §§ 236.02-.09 (2002). When grain is deposited in a grain bank, the depositor obtains a receipt indicating the type and quantity of the grain. Minn.Stat. § 236.03. The depositor may later demand that the grain be sold or that the grain bank redeliver grain of equivalent type and quantity. Id. at § 236.04. As a condition of licensing, the grain bank must post a bond sufficient to satisfy the claims of all depositors. Id. at § 236.02, subd. 5. A depositor may bring an action to recover against the bond, which is the only remedy that Minn.Stat. ch. 236 specifically grants to depositors. Id., subd. 6.

Under Minn.Stat. § 236.06, the grain bank receives a possessory lien on the grain for all charges arising out of the storage and processing of the grain. This provision establishes the sole form of action for recovering against this lien and states that “[i]n the event of inconsistency between this section and the Uniform Commercial Code, this section applies.” Because the language of section 236.06 plainly refers to “this section” and not the entire chapter, other UCC remedies remain available in grain bank cases that do not involve the grain bank’s possessory lien.

The legal relationship between a grain bank and a depositor is controlled by the common law of bailment. Torgerson v. Quinn-Shepherdson Co., 161 Minn. 380, 382, 201 N.W. 615, 616 (1925). A bailment occurs when goods are delivered, without transferal of ownership, under an express or implied agreement that the goods will be returned. Wallinga v. Johnson, 269 Minn. 436, 438, 131 N.W.2d 216, 218 (1964). When grain is deposited in a grain bank, a bailment is created that gives rise to the grain bank’s duty of care in keeping the grain. Production Credit Ass’n of St. Cloud v. Fitzpatrick, 385 N.W.2d 410 (Minn.App.1986). If the grain is damaged or lost, the operator has the burden to show lack of negligence. See Wallinga, 269 Minn. at 438-39, 131 N.W.2d at 219. These principles are consistent with grain bank regulation under Minn.Stat. ch. 236, which recognizes that the depositor is the “owner” of the grain. See Minn.Stat. § 236.03. The Duxburys contend that, because the depositor is entitled only to grain of the same type and quantity, rather than the same grain as deposited, no bailment arises. This argument is without legal support. Since the origin of statutory grain bank regulation, the Minnesota Supreme Court has consistently found a bailment, regardless of whether the grain is identical. See Torgerson, 161 Minn. at 382-83, 201 N.W. at 616; State v. Cowdery, 79 Minn. 94, 96-97, 81 N.W. 750, 750 (1900); Weiland v. Krejnick, 63 Minn. 314, 316-17, 65 N.W. 631, 632 (1895).

Our canons of statutory construction provide that, when two statutes are in conflict, they shall be construed, if possible, to give effect to both. Minn.Stat. § 645.26, subd. 1 (2002); State by Beaulieu v. Indep. Sch. Dist. No. 624, 533 N.W.2d 393, 396 (Minn.1995). In addition, remedies under the UCC are expressly protected from implied repeal. Minn.Stat. § 336.1-104 (2002); cf. Hampton Bank v. River City Yachts, Inc., 528 N.W.2d 880, 887 (Minn.App.1995) (concluding that statutory regulation of watercraft titles does not preclude the application of UCC), review denied (Minn. Apr. 27, 1995). The availability of a statutory remedy does not abrogate other common law remedies except by “express wording or necessary implication.” Ly v. Nystrom, 615 N.W.2d 302, 314 (Minn.2000). Thus, although statutory regulation in a field may supply the standard of care, compliance with such regulations does not protect a party from common law actions. Licha v. N. Pac. Ry., 201 Minn. 427, 431, 276 N.W. 813, 815 (1937); see generally 2B Norman J. Singer, Statutes and Statutory Construction § 50:05 (6th ed.2002).

Whether a transaction is governed by the UCC is a question of law, which we review de novo. Valley Farmers’ Elevator v. Lindsay Bros. Co., 398 N.W.2d 553, 556 (Minn.1987). A warranty action under Article 2 of the UCC requires a “sale,” which is defined as “the passing of title from the seller to the buyer for a price.” Minn.Stat. § 336.2-106(1) (2002). When a transaction involves both goods and services, we use the “predominant factor test” to determine whether the transaction is a sale under the UCC. Valley Farmers’ Elevator, 398 N.W.2d at 556. In doing so, we examine whether the predominant factor in the transaction is the transfer of goods or the provision of services. Id. Relevant factors include the language of the contract, the business of the supplier, and the “intrinsic worth” of the goods involved. Coakley & Williams, Inc. v. Shatterproof Glass Corp., 706 F.2d 456, 460 (4th Cir.1983). In practice, courts generally rely on the relative costs of the services and the goods. See McCarthy Well Co. v. St. Peter Creamery, Inc., 410 N.W.2d 312, 315 (Minn.1987) (finding no sale where well builder billed $35,000 for services and $8,000 for well pump); Valley Farmers’ Elevator, 398 N.W.2d at 556 (finding sale where elevator builder billed $120,000 for labor and more than $380,000 for materials); 1 James J. White & Robert S. Summers, Uniform Commercial Code § 9-2 (4th ed. 1995 & Supp.2003). Application of this analysis to circumstances where a buyer contributes raw materials to the finished product appears to be a matter of first impression in Minnesota.

It is undisputed that Spex is in the business of selling animal feed and feed supplements. Spex transferred a finished good, animal feed, to the Duxburys for a price. According to the receipts generated by Spex, the Duxburys were billed approximately $74 per ton for feed additives and supplements but only $8.50 per ton for the preparation and transport of the feed. Based on these facts, the predominant factor in the parties’ transaction was the transfer of goods. We, therefore, conclude that the transaction was a sale.

That grain bank corn was used does not affect this analysis. Under Minn.Stat. § 236.04, a depositor cannot redeem a grain bank receipt once the depositor directs that the grain be used to make feed. Nor can the depositor demand the finished feed simply because the depositor’s corn is a component. Compensation is required for the goods and services integrated into the finished product. Applying the definition of sale under Minn.Stat. § 336.2-106, title to the feed is not transferred until the depositor pays this price.

Because the legal effect of the grain bank statutes does not conflict with a finding that the UCC’s sale requirement has been satisfied, the grain bank statutes do not abrogate remedies under the UCC. Cf. Hampton Bank, 528 N.W.2d at 887.

For a products liability claim, the plaintiff must demonstrate that a product was defective at the time it left the defendant’s control and that the defect caused injury to the plaintiff. Bilotta v. Kelley Co. Inc., 346 N.W.2d 616, 623 n. 3 (Minn.1984). The policy underlying products liability is “to protect consumers from harm caused by defective products and to impose the costs of defective products upon the maker, who presumably profits from the product.” In re Shigellosis Litigation, 647 N.W.2d 1, 6 (Minn.App.2002), review denied (Minn. Aug. 20, 2002). Since its publication, we have relied on Restatement (Third) of Torts when considering the law of products liability. See Marcon v. Kmart Corp., 573 N.W.2d 728, 731 (Minn.App.1998), review denied (Minn. Apr. 14, 1998); State Farm Mut. Auto. Ins. Co. v. Ford Motor Co., 572 N.W.2d 321, 324 (Minn.App.1997). Restatement (Third) of Torts § 1 (1998) takes a broad approach, imposing liability on any party who is “engaged in the business of selling or otherwise distributing products[.]” “One sells a product when, in a commercial context, one transfers ownership thereto either for use or consumption or for resale leading to ultimate' use or consumption.” Restatement (Third) of Torts § 20(a) (1998).

Because products liability theory considers the relationship of the parties in the stream of commerce, not concepts of transfer and possession, the use of grain bank corn does not prevent recovery. See 3 American Law of Products Liability Sd § 35:1 (Timothy E. Travers ed. 1987 & . Supp.2003). ' The relevant consideration is whether the defendant is in the business of “selling or otherwise distributing” a product. Id.

As a manufacturer and supplier, Spex provides animal feed to the Duxburys and others for their use. Spex undertakes this enterprise for its own profit. Accordingly, Spex is engaged in the business of selling or otherwise distributing animal feed. An action for products liability, therefore, is available to the Duxburys.

Again, but for different reasons, the legal effect of the grain bank statutes does not expressly or necessarily preclude a products liability action. Cf. Ly, 615 N.W.2d at 314.

II.

Spex next challenges the Duxbur-ys’ recovery under the Minnesota Consumer Fraud Act, arguing that the district court’s failure to adopt the Jury Instructions Guide special verdict form for consumer fraud actions was reversible error. We review jury instructions for an abuse of discretion. Hilligoss v. Cargill, Inc., 649 N.W.2d 142, 147 (Minn.2002). Fundamental mistakes of law are reversible, but if the instructions fairly and correctly state the applicable law, they will stand. Id.

The Jury Instructions Guide special verdict form for consumer fraud, CIVJIG Spec. Verdict Form No. 57.92, has seven questions. 4 Minnesota Practice, CIVJIG Spec. Verdict Form No. 57.92 (Supp.2004). The first three questions parse the three elements of consumer fraud. See id. The next three questions set out comparative fault. See id.; cf. Jack Frost, Inc. v. Engineered Bldg. Components Co., 304 N.W.2d 346, 352 (Minn.1981). The last question requires the jury to calculate damages. See 4 Minnesota Practice, CIVJIG Spec. Verdict Form No. 57.92.

In lieu of the first three questions, the special verdict form at issue here asked, “Did [Spex] violate the Consumer Fraud Statute as defined in the jury instructions?” The district court has no obligation to adopt the Jury Instructions Guide special verdict form so long as the law is correctly stated. Cf. N. States Power Co. v. Fidelity & Cas. Co. of New York, 523 N.W.2d 657, 663 n. 8 (Minn.1994). Spex concedes that the jury instructions correctly stated the law and were in accordance with the Jury Instructions Guide. Thus, this aspect of the special verdict form provides no basis for finding error.

The remaining four questions are incorporated in the district court’s special verdict form, but Spex argues that the district court should have set out separate comparative fault questions on each theory of liability. Spex claims that separate questions are necessary in order to distinguish the claims on which the jury is assessing comparative fault. But this scheme would expose the district court to inconsistent verdicts. Where different claims present factual issues that are “closely related and involve similar proof,” it is permissible to merge these issues in the jury instructions. In re Shigellosis Litigation, 647 N.W.2d at 11. Thus, we conclude that the district court’s decision to merge redundant factual issues in the special verdict form was not an abuse of discretion.

III.

Spex argues that the negligence per se instruction based on Minnesota’s Commercial Feed Law was erroneously given because, Spex contends, the law does not regulate Spex’s conduct and, therefore, does not establish an applicable standard of care. Whether a statute applies to a party’s conduct presents an issue of statutory interpretation, which we review de novo. Brookfield Trade Ctr., Inc. v. County of Ramsey, 584 N.W.2d 390, 393 (Minn.1998).

The Minnesota Commercial Feed Law provides in relevant part that “[t]he following acts and causing the following acts in Minnesota are prohibited: (1) manufacture or distribution of any commercial feed that is adulterated or misbranded[.]” Minn. Stat. § 25.38 (2002). “Commercial feed” includes “materials or combinations of materials that are distributed or intended to be distributed for use as feed or for mixing in feed[.]” Minn.Stat. § 25.33, subd. 5 (2002).

The class of actors prohibited from manufacturing or distributing adulterated com-mereiál feed is not limited by Minn.Stat. § 25.38. Nor does the statute require the actor to be a “commercial’ feeder” or a licensed manufacturer or distributor of feed. It is not disputed that Spex manufactures and sells commercial feed as defined by Minn.Stat. § 25.33, subd. 5. And not one of the statutory exemptions applies here. Accordingly, Spex’s claim that the Minnesota Commercial Feed Law does not apply to its conduct is unavailing.

A negligence per se instruction may be given if (1) “the persons harmed by [the] violation [of a statute] are within the intended protection of the statute” and (2) “the harm -suffered is of the type the [statute] was intended to prevent.” Alderman’s Inc. v. Shanks, 536 N.W.2d 4, 8 (Minn.1995). The Duxburys operate a hog farm, the Minnesota Commercial Feed Law was enacted to protect farmers from harmful animal feeds, and the harm suffered here was damage from adulterated animal feed. The negligence per se instruction, therefore, was properly given.

IV.

The existence of a joint venture is ordinarily an issue of fact. Am. States Ins. Co. v. Ankrum, 651 N.W.2d 513, 522 (Minn.App.2002). But where no competent evidence will support a finding of joint venture, the district court may decide the issue as a matter of law. See Weber by Sanft v. Goetzke, 371 N.W.2d 611, 616 (Minn.App.1985), review denied (Minn. Sept. 26, 1985). Because the district court ruled as a matter of law that a joint venture did not exist, we review this determination de novo. Brookfield Trade Ctr., Inc. v. County of Ramsey, 584 N.W.2d 390, 393 (Minn.1998), review denied (Minn. Oct. 9, 1998).

A joint venture exists when two or more persons combine their money, property, time, or skills in a business enterprise and agree to share the resulting profits. Rehnberg v. Minnesota Homes, 236 Minn. 230, 234-35, 52 N.W.2d 454, 456-57 (1952). Participants in the venture have an agency relationship, which in part means that they share a duty of disclosure to one another. See id. at 236, 52 N.W.2d at 457 (holding that participants’ obligations are same as for partnership); see also Dahl v. Charles Schwab & Co., Inc., 545 N.W.2d 918, 925 (Minn.1996) (requiring agents to fully disclose all material facts to the principal).

A joint venture has four elements. First, each party must make a contribution of money, property, time, or skill to the enterprise. Ankrum, 651 N.W.2d at 522. Second, the parties must have joint proprietorship and control such that each party has a proprietary interest and the right of mutual control over the enterprise. Id. Third, the parties must have an express or implied agreement to share the profits, but not necessarily the losses, from the enterprise. Id. Fourth, the parties must have entered into an express or implied contract. Id. The district court’s ruling was based on the dearth of evidence as to the third element.

The element of shared profits does not require that participants in an enterprise share equally or that they share in losses. See Rehnberg, 236 Minn, at 236, 52 N.W.2d at 457. If the amount that one party receives is fixed, regardless of the success or failure of the enterprise, there is no joint venture. See Meyers v. Postal Fin. Co., 287 N.W.2d 614, 618-19 (Minn.1979) (finding no joint venture where one party “was to receive fixed payments” according to number of members in buying club, but that party had no right to a share of the other party’s profits); Treichel v. Adams, 280 Minn. 132, 135-36, 158 N.W.2d 263, 266 (1968) (finding no joint venture where a fixed amount of profits was applied against the debt owed by one party to the other).

Because Shanahan was entitled to only a fixed percentage of the Duxburys’ surviving newborn pigs, regardless of whether the Duxburys’ hog farm was profitable, there is no factual basis to support a finding that Shanahan was sharing profits with the Duxburys. Accordingly, the district court did not err in withholding the issue from the jury and determining as a matter of law that a joint venture did not exist.

V.

The availability of prejudgment interest is a legal issue that we review de novo. Trapp v. Hancuh, 587 N.W.2d 61, 63 (Minn.App.1998). Prejudgment interest is governed by Minn.Stat. § 549.09 (2002), which provides in relevant part:

Except as otherwise provided by contract or allowed by law, preverdict, preaward, or prereport interest on pecuniary damages shall be computed [according to an administratively determined interest rate] from the time of the commencement of the action or a demand for arbitration, or the time of a written notice of claim, whichever occurs first, except as provided herein.

Minn.Stat. § 549.09, subd. 1(b) (2002). Prejudgment interest is not available for that portion of a judgment based on interest. Id. at 1(b)(5).

The parties argue, in part, that the availability of prejudgment interest depends on the aseertainability of the judgment amount. But a plain reading of the statute indicates that prejudgment interest “shall be computed” regardless of the as-certainability of the judgment. Skifstrom v. City of Coon Rapids, 524 N.W.2d 294, 296 (Minn.App.1994), review granted (Minn. Feb. 3, 1995). and appeal dismissed (Minn. Oct. 25, 1995); see also Lienhard v. State, 431 N.W.2d 861, 865 (Minn.1988) (finding in dictum that prejudgment interest is allowed “irrespective of a defendant’s ability to ascertain the amount of damages”). The purpose of this statute is to give potential judgment debtors a greater incentive to- settle or expedite cases. See Skifstrom, 524 N.W.2d at 296; see also Patrick C. Diamond, Note, The Minnesota Prejudgment Interest Amendment, 69 Minn. L.Rev. 1401, 1408-09 & n. 25 (1985). To properly execute the meaning and purpose of the statute, we hold that prejudgment interest is available notwithstanding aseertainability of the judgment.

Spex next claims that the issue of prejudgment interest was improperly submitted to the jury. The Duxburys respond that interest, is properly considered as an element of pecuniary damages and is necessary to reflect interest on “lost profits.” As we previously noted, jury instructions are reviewed for abuse of discretion but will be reversed if there is a fundamental misstatement of the applicable law. Hilligoss, 649 N.W.2d at 147.

The arguments as framed by the parties suggest some confusion between prejudgment interest and interest as an element of pecuniary damages. In a warranty action, if a plaintiff is required to take out loans as a result of economic loss, then the interest on those loans is recoverable as an element of pecuniary damages. Anderson v. Lloyd’s Feed Serv., 443 N.W.2d 208, 210-11 (Minn.App.1989); Imdieke v. Blenda-Life, Inc., 363 N.W.2d 121, 125-26 (Minn.App.1985), review denied (Minn. Apr. 26, 1985). By contrast, prejudgment interest compensates the plaintiff for inflation for the period from the claim to the verdict. It is not based on any loss intrinsic to the plaintiffs claim. See Lienhard, 431 N.W.2d at 865 (finding in dictum that prejudgment interest “con-vertís] time-of-demand damages into time-of-verdict damages”); see also Minn.Stat. § 549.09, subd. 1(c) (basing prejudgment interest on secondary market yield from one-year treasury bills).

The difference between these two forms of interest is implicitly recognized by Minn.Stat. § 549.09. When calculating prejudgment interest, any part of the pecuniary damages based on interest is excluded from the principal amount. Minn.Stat. § 549.09, subd. 1(b)(5). This deduction prevents interest from being awarded twice — once for the interest that accrues from the time of a loan, until the verdict and again for the interest that accrues from the time of a claim until the verdict.

The Duxburys, in effect, are seeking compensation for the impact of inflation on their prospective profits. But because Minn.Stat. § 549.09 compensates a plaintiff for inflation from the time of the claim, it is not permissible for a plaintiff to seek interest on “lost profits” as an element of pecuniary damages. Otherwise, the plaintiff would collect interest once from the time of the loss and again from the time of the claim. Such a result is exactly what the statute is designed to avoid.

On damages, the district court instructed the jury to calculate “interest from the time at which the value of the property is fixed.” This instruction contemplates the effect of inflation on the amount of the loss. But statutory prejudgment interest supplies the proper remedy. Because prejudgment interest is determined as a matter of law and is based on the amount of the verdict, it was reversible error for the district court to submit this issue to the jury.

VI.

Spex summarily argues that there is insufficient evidence to support the verdicts for warranty, products liability, and consumer fraud. We uphold a district court’s decision to deny JNOV when there is competent evidence that reasonably supports the verdict. Pouliot v. Fitzsimmons, 582 N.W.2d 221, 224 (Minn.1998). A decision to deny a new trial will stand unless the verdict is “manifestly and palpably contrary to the evidence.” Raze v. Mueller, 587 N.W.2d 645, 647 (Minn.1999) (quotation omitted). On review, we consider the evidence in the light most favorable to the prevailing party. Pouliot, 582 N.W.2d at 224.

The elements for a claim of breach of warranty under the UCC are (1) the existence of a warranty; (2) breach of the warranty; and (3) causation of damages. Peterson v. Bendix Home Sys., Inc., 318 N.W.2d 50, 52-53 (Minn.1982). When a seller makes “any affirmation of fact or promise” about a product, an express warranty arises that the product will conform to that promise. Minn.Stat. § 336.2-313(l)(a) (2002). It is not necessary that the promise be characterized as a warranty. Id. at § 336.2-313(2) (2002).

According to both Shanahan and the Duxburys, representatives of Spex said that quality corn would be used in the feed. Thus, an express warranty arose. See Yost v. Millhouse, 373 N.W.2d 826, 829 (Minn.App.1985) (finding sufficient evidence of express warranty where seller makes representation about character of merchandise). The warranty was breached when substandard corn was used to make the feed, and it' harmed the Duxbur-ys’ sows. The evidence in the record is sufficient to support the jury’s verdict on the express warranty claim. See Heil v. Standard Chem. Mfg. Co., 301 Minn. 315, 322-23, 223 N.W.2d 37, 41-42 (1974).

An implied warranty of merchantability provides that the product is fit for its ordinary and intended use, Minn.Stat. § 336.2-314(2)(c) (2002). An implied warranty of merchantability arises automatically when the product is a “good” and the seller is in the business of furnishing the product to the consumer. Id. at § 336.2-314(1) (2002). A product is a good if it is “movable at the time of identification -to the contract for sale.” Id. at § 336.2-105(1) (2002); see also TCP Bank & Sav., F.A. v. Marshall Truss Sys., Inc., 466 N.W.2d 49, 51-52 (Minn.App.1991) (finding that, where buyer purchased specially manufactured building trusses for building site, trusses were “goods” for purposes of implied warranty of merchantability), overruled on other grounds by Lloyd F. Smith Co. v. Den-Tal-Ez, Inc., 491 N.W.2d 11 (Minn.1992).

Because Spex is in the business of furnishing animal feed, a movable good, an implied warranty of merchantability arose. The feed, which was not fit for its ordinary and intended use, caused illness to the sows and economic loss to the Duxburys. Thus, we conclude that there also is sufficient evidence to support the jury’s verdict on the implied warranty claim. Cf. Int’l Fin. Servs., Inc. v. Franz, 534 N.W.2d 261, 266-67 (Minn.1995).

The elements of a products liability claim are that (1) a product was in a defective condition unreasonably dangerous for its intended use; (2) the defect existed at the time the product left the defendant’s control; and (3) the defect proximately caused the plaintiffs injury. Bilotta, 346 N.W.2d at 623 n. 3. When products liability is based on a manufacturing-flaw theory, a product is in a defective condition if the user could not have anticipated the danger that the product poses. Id. at 622; see also 4A Minnesota Practice, CIVJIG § 75.30 (4th ed.1999).

The evidence establishes that toxins were in the hog feed when it left Spex’s control. The Duxburys could not have anticipated that the hog feed would be dangerous to their gestating sows, and as a result, their sows were injured. Accordingly, there is sufficient evidence to support the jury’s verdict on the products liability claim.

In a consumer fraud action, the plaintiff must prove that (1)' the defendant used false information or a deceptive practice; (2) the defendant intended that others rely on the false information or deceptive practice; and (3) the plaintiffs reliance on the false information or deceptive practice harmed the plaintiff. Minn.Stat. § 325F.69, subd. 1; cf. Church of Nativity of Our Lord v. WatPro, Inc., 491 N.W.2d 1, 8 (Minn.1992); 4 Minnesota Practice, CIVJIG § 57.40 (Supp.2003).

When viewed in the light most favorable to the verdict, the record demonstrates that, after Spex learned of problems in its storage of grain bank corn, it did not take action to rectify the problem. Rather, Spex continued to tell the Duxbur-ys that feed made from the corn was safe. As a result, the Duxburys continued to use the feed long after their gestating sows began suffering ill effects. Accordingly, there is sufficient evidence in the trial record to support the jury’s verdict on the consumer fraud claim.

DECISION

The district court properly allowed actions for products liability and warranty to proceed, and the jury instructions for negligence, warranty, products liability, and consumer fraud were not erroneous. As the jury’s verdicts on these claims are supported by sufficient evidence, we affirm. The district court erred, however, in submitting the issue of prejudgment interest to the jury. Accordingly, we reverse the jury’s determination of prejudgment interest and remand for further proceedings to calculate prejudgment interest, pursuant to Minn.Stat. § 549.09, without consideration of lost profits.

Affirmed in part, reversed in part, and remanded.

      . The Duxburys also claim that some of the corn was taken from sources other than the grain bank. Because the actual origin of the corn is not relevant to the legal issues raised on appeal, it is sufficient to rely on Spex's representation that corn was taken from the grain bank.

      . Spex argues that, because products liability and implied warranty claims "merge” into a single products liability theory, the absence of a sale under the UCC would also bar a products liability claim. As our analysis shows, each of these theories considers the underlying transaction differently. Merger is only available where different claims present similar factual issues. See Bilotta, 346 N.W.2d at 622 (allowing merger of negligence with design-defect and failure-to-warn products liability cases because these products liability theories incorporate a negligence standard). Here, because products liability is based on manufacturing flaws and negligence is not incorporated into this theory, it cannot be merged with an implied warranty claim. See Michael J. Steenson, Comparative Analysis of Minnesota Products Liability Law and the Restatement (Third) of Torts: Products Liability, 24 Wm. Mitchell L.Rev. 1, 18 (1998); see also Piotrowski v. Southworth Prods. Corp., 15 F.3d 748, 751 (8th Cir.1994).

      . Although Spex summarily argues that the submission of the consumer fraud claim to the jury is erroneous, it does not specifically challenge the damages instruction. At trial, the parties argued whether the Duxburys could seek damages through their consumer fraud action.
      The only remedy directly available under the Minnesota Consumer Fraud Act is injunction. Minn.Stat. § 325F.70, subd. 1 (2002). But damages and attorney fees may be available through the private attorney general statute, Minn.Stat. § 8.31, subds. 1, 3a (2002). To proceed under this statute, the plaintiff is required to demonstrate that the action benefits the public as a whole, rather than the plaintiff alone. Ly, 615 N.W.2d at 312.
      After trial, the parties litigated whether the Duxburys' successful consumer fraud claim entitled them to attorney fees under the private attorney general statute. The district court concluded that there was no public interest at stake and held that attorney fees were not available. ■ By the same logic, the Duxburys also would not be entitled to dam- ■ ages from their consumer fraud action. Even if the submission of damages on this theory were a fundamental mistake of law, there was no prejudice to Spex, and the error does not require reversal. Stelter v. Chiquita Processed Foods, L.L.C., 658 N.W.2d 242, 246 (Minn. App.2003).

      . The district court also observed, but did not directly hold, that there was no evidence to support a finding of joint proprietorship and control. Although the Duxburys relied on Shanahan to assist them with animal feed issues, it is undisputed that Shanahan did not assert control over the Duxburys’ hog farm or participate in any day-to-day business decisions. Thus, these facts also support a finding that, as a matter of law, there was no joint venture. See Beehner v. Cragun Corp., 636 N.W.2d 821, 832 (Minn.App.2001); Powell v. Trans Global Tours, Inc., 594 N.W.2d 252, 256 (Minn.App.1999).

      . Two conflicting lines of authority have arisen in this area. Prior to the amendment of Minn.Stat. § 549.09 in 1984, common law provided that prejudgment interest was available only when the amount of the judgment was ascertainable. See Summit Court, Inc. v. N. States Power Co., 354 N.W.2d 13, 16 n. 1 (Minn.1984). The first case to directly address the effect of the new amendment, Skifs-trom, held that the aseertainability rule had been superseded and that the statute should be strictly applied. 524 N.W.2d at 296.
      Ensuing cases have not uniformly followed Skifstrom. The majority of post-Skifstrom cases continued to apply the common law aseertainability rule. See, e.g.; Peterson v. BASF Corp., 657 N.W.2d 853, 873-74 (Minn.App.2003), aff'd on other grounds, 675 N.W.2d 57 (Minn. Feb.19, 2004); Pine Valley Meats v. Canal Capital Corp., 566 N.W.2d 357, 364 (Minn.App.1997), review denied (Minn. Sept. 18, 1997). Wenzel v. Mathies disregarded Skifstrom and expressly rejected the strict application of prejudgment interest under the statute. 542 N.W.2d 634, 644 (Minn.App.1996), review denied (Minn. Mar. 28, 1996). Trapp also disregarded Skifstrom but attempted to reconcile the statute with the common law rule. 587 N.W.2d at 63. Trapp found that, because Minn.Stat. § 549.09 only requires prejudgment interest "[ejxcept as otherwise provided by contract or allowed by law,” the provision incorporated the common law aseertainability rule. Id. at 63 (emphasis added).
      But other cases continue to rely on Skifs-trom. See Myers v. Hearth Techs., Inc., 621 N.W.2d 787, 794 (Minn.App.2001), review denied (Minn. Mar. 15, 2001); Cox v. Crown CoCo, Inc., 544 N.W.2d 490, 500-01 (Minn.App.1996). Skifstrom's interpretation of Minn.Stat. § 549.09 was also recently adopted by the Eighth Circuit. See Children's Broadcasting Corp. v. Walt Disney Co., 357 F.3d 860, 869-70 (8th Cir.2004) (citing Myers, 621 N.W.2d at 794).

      . Spex’s appeal does not specifically challenge the district court's finding that there is sufficient evidence for the Duxbuiys' negligence claim. But at oral argument, Spex challenged the sufficiency of evidence for the negligence claim, relying in part on issues first raised in its reply brief. Because this issue has not been squarely presented, it is waived, and we decline to consider it. See Swarthout v. Mut. Serv. Life Ins. Co., 632 N.W.2d 741, 748 (Minn.App.2001).


source: Caselaw Access Project

author: STONEBURNER, Judge.

license: Public Domain

text:
    Terry OPAY on behalf of himself and all others similarly situated, Appellant, v. EXPERIAN INFORMATION SOLUTIONS, INC., Respondent.
    No. A03-1832.
    Court of Appeals of Minnesota.
    June 15, 2004.

      Thomas J. Lyons, Sr., Thomas J. Lyons & Associates, and Thomas J. Lyons, Jr., John H. Goolsby, Little Canada, MN, for appellant.
    James S. Simonson, Gray, Plant, Mooty, Mooty & Bennet, Minneapolis, MN; and Jerome R. Doak, Jones Day, Dallas, TX, for respondent.
    Considered and decided by SCHUMACHER, Presiding Judge; LANSING, Judge; and . STONEBURNER, Judge.
   OPINION

STONEBURNER, Judge.

In this consumer fraud action, appellant claims that respondent violated Minn.Stat. §■ 13C.01, subd. 1(a) (2002), by charging more than $3.00 for consumer credit reports requested and received via the Internet. The district court dismissed appellant’s- claim for failure to state a claim upon which relief could be granted. We affirm.

FACTS

Appellant purchased a copy of his consumer credit report from respondent via the Internet. Respondent charged appellant $9.00 for the report. Appellant initiated this consumer fraud action under Minn.Stat. § 325F.69 (2002), on behalf of himself and all others similarly situated, alleging that respondent violated the price limitation in Minn.Stat. § 13C.01, subd. 1(a), for consumer credit reports requested and received by mail. The district court granted respondent’s motion to dismiss the action for failure to state a claim on which relief could be granted, holding that the statute does not apply to consumer credit reports requested and received via the Internet. This appeal followed.

ISSUE

Did the district court err by dismissing appellant’s class action alleging consumer fraud on the basis that the price cap of Minn.Stat. § 13C.01, subd. 1(a) (2002) does not apply to consumer credit reports purchased via the Internet?

ANALYSIS

In reviewing cases that were dismissed for failure to state a claim on which relief can be granted, the only question before the appellate court is whether the complaint sets forth a legally sufficient basis for relief. Barton v. Moore, 558 N.W.2d 746, 749 (Minn.1997).

Statutory construction is a question of law, which this court reviews de novo. Brookfield Trade Ctr., Inc. v. County of Ramsey, 584 N.W.2d 390, 393 (Minn.1998). Appellate courts “must give a plain reading to any statute it construes, and when the language of the statute is clear, the court must not engage in any further construction.” U.S. Specialty Ins. Co. v. James Courtney Law Office, 662 N.W.2d 907, 910 (Minn.2003) (citations omitted). Plain meaning presumes the ordinary usage of words that are not technically used or statutorily defined, relies on accepted punctuation and syntax, and draws from the full-act context of the statutory provision. Am. Tower, L.P. v. City of Grant, 636 N.W.2d 309, 312 (Minn.2001) (words and phrases carry plain and ordinary meaning). “Although plain meaning is the governing principle in applying all statutory language, Minnesota courts will not give effect to plain meaning if it produces an absurd result or an unreasonable result that is plainly at variance with the policy of the legislation as a whole.” Occhino v. Grover, 640 N.W.2d 357, 360 (Minn.App.2002).

Appellant argues that the language of Minn.Stat. § 13C.01, subd. 1(a) (2002), imposing a price cap of $3.00 on consumer credit reports that are requested and received “by mail,” may be plainly construed to include consumer credit reports requested and received via the Internet. Appellant relies on two recent dictionary definitions to support his proposition that the plain and ordinary meaning of “mail” as a method of delivery includes electronic transmissions. See Black’s Law Dictionary 963 (7th ed.1999) (“[o]ne or more written or oral messages sent electronically (e.g., through e-mail or voicemail)”); Merriam Webster Online Dictionary mail[2, noun] definition 2.c, at http://www.merriamwebster.co m/cgi-bin/dictionary?book=Dictionary & va=mail (last visited June 8, 2004) (“[Mjessages sent electronically to an individual (as through a computer system)”).

The district court rejected the definitions asserted by appellant and focused on definitions from 1992, when the statute was enacted. In 1992, and even up to 1996, dictionaries did not include any type of electronic transmission in the definition of “mail.” See, e.g., American Heritage Dictionary of the English Language 1083 (3d ed. 1992) (“Materials, such as letters and packages, handled in a postal system.”); Websters II New Riverside University Dictionary 717 (1994) (“Materials handled in a postal system, as letters and packages.”); The Oxford Dictionary and Thesaurus 903 (American ed. 1996) (“[L]etters and parcels, etc., conveyed by the postal system.”). We agree with the district court that the plain meaning of “mail” did not include electronic transmissions when the statute was enacted, and the plain meaning of the unmodified term “mail” as currently used in the statute does not include electronic transactions. In 1996, the federal companion statute, the Fair Credit Reporting Act (FCRA), was amended to allow disclosure of consumer credit reports in a variety of ways, including “by electronic means.” Pub.L. No. 104-206, § 2408(e)(1), 110 Stat. 3009-438, 3009-439 (codified as amended at 15 U.S.C. § 1681h(b)(2) (2000)). The Minnesota Legislature amended Minn.Stat. § 13C.01, subd. 1(a), in 1999 to lower the price cap for consumer reports requested and received by mail from $8.00 to- $3.00, but did not amend the statute to include requests of consumer reports by electronic transmissions or to indicate that use of the term “mail” includes electronic transmissions. 1999 Minn. Laws ch. 244, § .1. This is significant because between 1992 and amendment of the statute in 1999, the legislature differentiated between the use of mail and electronic transmissions in amending other statutes. See 1999 Minn. Laws ch. 107, § 43 (codified at Minn.Stat. § 268.086, subd. 3(a) (2002)) (specifying methods for filing requests for unemployment benefits as “by telephone”, “by electronic transmission”, “by mail”, or “by in-person interview”); 1998 Minn. Laws ch. 343, art. 1, § 17 (codified at Minn.Stat. § 58.17, subd. 3 (2002)) (“offer means any advertisement or solicitation of any type, including an advertisement or solicitation in newspapers and magazines, by mail, by telephone, on television, on radio, or via the Internet or any other electronic medium of any kind, for residential mortgage originator services.”); 1996 Minn. Laws ch. 437, § 5 (codified at. Minn.Stat. § 114C.12, subd. 4(c) (2002)) (requiring public notice by “posting in public buildings, by publication in local newspapers or periodicals, by publication in the State Register, or by an alternate method deemed by the commissioner to be more effective such as an electronic bulletin board or mail service”).

Appellant argues that to exclude electronic transmissions from the definition of “mail” as used in the statute would lead to the absurd result of leaving consumers who request and receive credit reports via the Internet without the protections afforded by the statute. But all of these protections are afforded through the federal FCRA and the accompanying Federal Trade Commission (FTC) regulations that cover all consumer credit reports, no matter how they are requested or delivered. The FCRA requires a summary of the consumers rights, including the right to dispute, to be sent with every credit report, a response to every consumers request for his or her credit report, and a price cap on all reports. 15 U.S.C. §§ 1681g, 1681g(c), 1681h(b)(2), 1681j(a)(2); FTC Notice Regarding Charges for Certain Disclosures, available at http://www.ftc.gov/os/2002/12/fedcre-ditstatutesfrn.htm (review and modification of maximum charge by FTC). Appellant concedes that respondent was in compliance with all applicable federal laws and regulations.

Appellants reliance on the federal regulations of the Textile Fiber Products Identification Act (TFPIA) for the proposition that “mail” includes electronic mail is not persuasive. Under the TFPIA regulations, the FTC provided advance notice to textile companies as to how the government would construe the terms “mail order catalog” and “mail order promotional material.” See 15 U.S.C. § 70e(c) (2000); 16 C.F.R. § 303.1(u). And the regulation lists “by mail” and “electronic mail” as separate forms of communications, supporting respondents assertion that “mail” does not include electronic mail. 16 C.F.R. § 303.1(u) (listing purchase of textile products “by mail, telephone, electronic mail, or some other method”).

Appellant also relies on a recent trademark case to assert that “mail” includes electronic transmissions. But the issue in America Online, Inc. v. AT&T Corp., was not whether the statutory definition of the word “mad” includes electronic transmissions. 64 F.Supp.2d 549 (E.D.Va.1999), affd in part, vacated in part, and remanded,’ 243 F.3d 812 (4th Cir.2001). Rather, the case involved whether AOL’s tag line, “YOU HAVE MAIL,” qualified as a protected trademark. Id. Moreover, the AOL court noted that at the time the case was heard in 1999, 92 of the dictionary definitions introduced by the parties did not include electronic mail within the definition of “mail.” Id. at 564.

DECISION

The district court did not err by dismissing appellant’s case for failure to state a claim upon which relief could be granted. The $3.00 price cap in Minn.Stat. § 13C.01, subd. 1(a) (2002), does not apply to consumer credit reports obtained via the Internet. Because respondent did not violate Mi'nn.Stat. § 13C.01, subd. 1(a), appellant failed to state a claim under Minn. Stat. § 325F.69 (2002).

Affirmed.


author: RANDALL, Judge.

text:
    STATE of Minnesota, Plaintiff, v. Richard Joseph JACOBSON, Defendant.
    No. A03-1782.
    Court of Appeals of Minnesota.
    June 15, 2004.

      Joseph S. Friedberg, Minneapolis, MN; and Lisa L. Peralta, Minneapolis, MN, for defendant.
    Mike Hatch, Attorney General, St. Paul, MN; and James C. Backstrom, Dakota County Attorney, Phillip D. Prokopowicz, Assistant County Attorney, Hastings, MN, for plaintiff.
    Considered and decided by TOUSSAINT, Chief Judge, RANDALL, Judge, and FORSBERG, Judge.

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

   OPINION

RANDALL, Judge.

The state charged ' defendant Richard Jacobson with conspiracy tó procure unlawful voting and conspiracy to commit forgery. Defendant pleaded not guilty and filed a motion to dismiss the complaint. The district court denied the motion to dismiss, and later granted the state’s motion to suppress evidence relevant to defendant’s defense that he relied on the advice of counsel and on an official interpretation of the law when he devised a plan to get voters to list his business address as their place of residence. The district court concluded that any reliance on the advice of counsel and/or on an official interpretation of the law was unreasonable as a matter of law. The district court did not explicitly address whether Minnesota recognizes the defenses of reliance on the advice of counsel and on an official interpretation of the law, Instead, the court concluded that defendant’s reliance on the defenses was unreasonable and excluded any evidence relating to the defenses on that basis. At defendant’s request, the district court certified as important and doubtful the questions of (1) “whether the defenses of reliance on advice of counsel and on an official interpretation are available to the Defendant under Minnesota law,” and (2) “whether the defenses of reliance on advice of counsel and on an official interpretation are available to Defendant as a matter of law given the District Court’s finding that any reliance was not reasonable.”

FACTS

At the time of the events alleged in the complaint, defendant Richard' Joseph Jacobson was the owner of Jakes, an adult men’s club located at 15981 Clayton Avenue, in Coates. On October 8, 2002, Jakes was closed by court order for operating a sexually oriented business in violation of a city ordinance.

Three days later, the Dakota County Auditor’s Office reported that it had received 93 voter-registration cards listing Jakes as the voters’ place of residence. Thé registration cards were dated between September 29, 2002, and October 4, 2002, and were received in connection with municipal elections.

On October 14, investigators conducted a search of Jakes and defendant’s motor vehicle to determine the identities of individuals residing at Jakes. Officers found no evidence suggesting that people were residing at Jakes. Inside the building, however, officers located 13 blank voter-registration cards and two completed voter-registration cards, listing Jakes as the signatories’ place of residence. Inside defendant’s vehicle, officers found 26 blank voter-registration forms and a highlighted copy of Minnesota voter-registration statutes.

Two days after the search, defendant was charged with conspiracy to procure unlawful voting and conspiracy to commit forgery. The complaint alleged that, between September and October 2002, defendant solicited people to fill out, sign, and file voter-registration cards falsely listing Jakes as the voter’ place of residence, in an attempt to determine or influence the outcome of the elections. Defendant pleaded not guilty to the charges.

In February 2003, defendant filed a motion to dismiss the complaint on the ground that “the statutes prohibiting forgery and unlawful voting are unconstitutionally vague as applied to defendant when considered in light of other voting statutes.” Defendant argued that the statutes regarding the charged offenses and those related to election laws contained “inexplicably contradictory definitions of prohibited behavior.” In connection with his motion, defendant submitted an affidavit in which he stated that, for the past several years, he had retained an attorney to represent him in various civil matters. Defendant indicated that, in July 2002, his civil attorney showed him a copy of a letter from Chief Deputy Dakota County Attorney Phillip Prokopowicz to Minneapolis Assistant Clerk and Director of Elections Suzanne Griffin. The letter concerned an investigation into the alleged violation of voter-registration and election laws by various Minneapolis police officers. In the letter, Prokopowicz stated that there was no evidence that the officers had violated election laws when they registered to vote listing their work address rather than their home address. The affidavit also indicated that his civil attorney, Randall Tigue, showed defendant a book containing Minnesota’s voting and elections laws. Defendant asserted that “[w]ith [his attorney’s] counsel and advice, and relying on a review of Minnesota’s election laws and the letter by Mr. Prokopowicz,” he and several of his employees “devised a plan to get people to register to vote using Jakes as a residence.”

The district court denied defendant’s motion to dismiss the complaint. Claiming that reliance on the advice of counsel is not a recognized defense in Minnesota, the state moved to suppress (1) any documentation, testimony, or reference to a complaint alleging violations of voter-registration election laws by various Minneapolis police officers, and (2) any documentation, testimony, or reference to the disposition of the complaint. Defendant objected to the motion, arguing that the evidence was relevant to his defense that he relied on the advice of counsel and on an official interpretation of the law.

At the suppression hearing, the state indicated that the motion to exclude covered the letter Prokopowicz sent to Griffin regarding the disposition of the election-law complaint, as well as expected testimony from his civil attorney regarding the letter and any advice he may have given defendant regarding Minnesota voter-registration and election laws. The state claimed that such evidence was irrelevant, “likely to confuse the jury,” and amounted to improper argument.

Defendant opposed the state’s motion arguing that (1) the evidence was relevant to the issue of'defendant’s intent, (2) the evidence was relevant to establish the defense of reliance on the advice of counsel and on an official interpretation of the law, (3) the probative value of the evidence was so high that no basis existed to exclude it on grounds of confusion, (4) the evidence was not hearsay, or alternatively, was admissible as an exception to the hearsay rule, and (5) the evidence had to be admitted to protect defendant’s constitutional right to present a defense.

The district court granted the state’s motion to exclude the evidence and barred defendant from asserting the defenses of reliance on the advice of counsel and on an official interpretation of the law. The court did not specifically address whether Minnesota recognizes the defenses of reliance on the advice of counsel and on an official interpretation of the law. Instead, the district court concluded that defendant’s reliance on these defenses would be unreasonable, as a matter of law, and went on to exclude any evidence relating to the defenses on that basis including Prokopow-icz’s letter and his civil attorney’s testimony.

The issue of certification came up and the district court, agreeing with certification, noted that several other defendants charged in this case were awaiting the outcome of this case. At defendant’s request, the district court certified as important and doubtful the questions of (1) “whether the defenses of reliance on advice of counsel and on an official interpretation are available to the Defendant under Minnesota law,” and (2) “whether the defenses of reliance on advice of counsel and on an official interpretation are available to Defendant, as a matter of law, given the District Court’s finding that any reliance was not reasonable.” This appeal follows.

ISSUES

1. Are the defenses of reliance on advice of counsel and on an official interpretation available to a defendant under Minnesota law?

2. Are the defenses of reliance on advice of counsel and on an official interpretation available to this defendant, as a matter of law, given the district court’s finding that any reliance was not reasonable?

3. Did the district court violate defendant’s due-process right to present a defense by excluding evidence that he relied on the advice of counsel and on an official interpretation of the law?

ANALYSIS

We first consider our jurisdiction over certification by the district court. “In a criminal case, upon proper motion, the district court may certify ‘any question of law ... which in the opinion of the judge is so important or doubtful as to require a decision of the Court of Appeals.’ ” Minn. R.Crim. P. 28.03. “The certification should be carefully and precisely framed so as to present distinctly and clearly the question of law involved.... ” Thompson v. State, 284 Minn. 274, 277, 170 N.W.2d 101, 103 (1969). The function of the certification procedure is not to present a hypothetical question or to secure an advisory opinion. Id. “A question of law should not be presented until the record is developed to the point where the question is relevant and presents a substantial issue.” State v. Mireles, 619 N.W.2d 558, 563 (Minn.App.2000), review denied (Minn. Feb. 15, 2001).

Where an appeal would otherwise not be allowed by rule, appellate courts may grant discretionary review to certified questions when the parties have briefed the issues, the record is adequately developed, and the issue is important and doubtful. See State v. Childs, 269 N.W.2d 25, 26 n. 1 (Minn.1978) (stating that although an order denying a motion to suppress evidence is not an appealable order, discretionary review is available when the parties have briefed the case, the record is adequately developed, and the evidence in question is important to the prosecution’s case).

The first certified question is properly before us, even though the district court did not technically rule on the question, but, instead, found other grounds to rule against defendant. See State v. Reps, 302 Minn. 38, 42, 223 N.W.2d 780, 783-84 (1974) (stating that “[wjhile [review without an order] may not have conferred appellate jurisdiction in the traditional sense, we think it is nevertheless sufficiently appellate in nature, regardless of a trial court ruling, to warrant our determination.”). The second certified question is also properly before us. The district court concluded that defendant’s reliance on these defenses was unreasonable and excluded any evidence relating to the defenses on that basis. Neither question presents a hypo-thetieal situation or calls for an advisory opinion. Our ruling will have an immediate and substantial effect on the other defendants and on the prosecution of this case, which has been stayed pending our determination. . In addition, both questions are presented well and do not require us to assume a set of facts not in the record.

I.

Recognized Defense

Defendant argues that reliance on the advice of counsel and on an official interpretation of the law are recognized defenses in Minnesota. At oral argument, the state conceded that good-faith reliance on the advice of counsel could be relevant to the issue of intent when intent is an element of the charged crime. The state agrees that reliance on an official interpretation of law can be a defense if the reliance is made in good faith. The district court did not rule on these two arguments.

A. Reliance on the Advice of Counsel

Although Minnesota has not expressly recognized the defense of reliance on the advice of counsel,, it has recognized that good-faith reliance on the advice of professionals is a defense to a specific intent crime. See, e.g., State v. Ruud, 259 N.W.2d 567, 579 (Minn.1977) (holding that district court did not err by refusing to instruct jury that defendant’s reliance on accountant’s advice negated their intent to commit theft and present false claims to a public body, because defendants failed to fully and fairly disclose all of their actions to their accountant); State v. Peterson, 463 N.W.2d 308, 310-11 (Minn.App.1990) (holding that defendant could not assert defense of reliance on instructions of tow-truck operator in prosecution for driving vehicle in an unsafe condition, because specific intent was not an element of the offense).

We note that other jurisdictions recognize the defense of good-faith reliance on the advice of counsel when intent is an element of the crime charged. See United States v. Urfer, 287 F.3d 663, 665-666 (7th Cir.2002) (holding that there is no “advice of counsel” defense, but stating that “if a criminal, statute requires proof that the defendant knew he was violating the statute in order to be criminally liable , for the violation, and it is unclear whether the statute forbade his conduct, the fact that he was acting on the advice of counsel is relevant because it bears on whether he knew that he was violating the statute”); Rea v. Wichita Mortgage Corp., 747 F.2d 567, 576 (10th Cir.1984) (stating that reliance on the advice of counsel is a valid defense in both civil and criminal cases and that, although not an absolute defense, it is relevant to determining “a defendant’s good faith, willfulness, or illegal intent”); United States v. Civella, 666 F.2d 1122, 1126 (8th Cir.1981) (stating that the advice of counsel can negate willfulness but does not constitute an absolute defense); United States v. McLennan, 563 F.2d 943, 946 (9th Cir.1977) (holding that reliance on the advice of counsel is relevant to the issue of intent if the defendant gave his or her attorney all of the facts and counsel specifically advised the course of action taken by the defendant); United States v. Diamond, 430 F.2d 688, 694-95 (5th Cir.1970) (stating that reliance - on the advice of counsel as a defense to, the intent of mail fraud available if defendant acted in good faith).

While continuing to argue that the advice of defendant’s civil attorney-was irrelevant, the state conceded that good-faith reliance on the advice of- counsel could be relevant to the issue of intent when intent is an element of the charged crime. The state did argue that if defendánt’s attorney’s advice was, for instance, “this is breaking the law but you can go ahead and do it as I think you can get away with it,” or something to that effect, the reliance would not be in good faith and not relevant on the issue of intent. The state conceded, however, that if defendant’s attorney had made a good-faith determination that defendant’s actions were legal and later it was determined that his research was flawed, his advice would be relevant on the issue of intent. However, the state still continues to claim that counsel’s advice is irrelevant because the state argues that “scienter” is an element of conspiracy on the two counts against defendant, but insisted that scienter goes to the “intent to commit the specific bad act that is an essential element of the crime,” not the conspiracy itself. The defense argues that scienter is an essential element of conspiracy on the two counts against defendant and that the state is required to prove “intent to conspire.” We conclude the state is required to prove “intent to conspire.” Thus, the attorney’s advice, if in good faith, is relevant on the issue of intent to conspire to procuring unlawful voting and to commit forgery.

We conclude that good-faith reliance on the advice of counsel is an available defense when intent is an element of the charged crime.

B. Reliance on an Official Interpretation of the Law

Many jurisdictions, including Minnesota, have recognized the defense of good-faith reliance on an official interpretation of the law, including official actions or pronouncements regarding a criminal charge. See State v. McKown, 461 N.W.2d 720, 725 (Minn.App.1990) (concluding that state had previously approved certain conduct and then unconstitutionally prosecuted defendants for the same conduct), aff'd, 475 N.W.2d 63 (Minn.1991), cert. denied, 502 U.S. 1036, 112 S.Ct. 882, 116 L.Ed.2d 786 (1992); United States v. Tallmadge, 829 F.2d 767, 774 (9th Cir.1987) (stating that in asserting reliance on an official interpretation of law “the defendant must show that he relied on the false information and that his reliance was reasonable.”); Cox v. Louisiana, 379 U.S. 559, 571, 85 S.Ct. 476, 484, 13 L.Ed.2d 487 (1965) (concluding that the state could not prosecute protestors for violating a statute prohibiting demonstrations near courthouse where a police official informed protestors they could picket there); Raley v. Ohio, 360 U.S. 423, 437, 79 S.Ct. 1257, 1266, 3 L.Ed.2d 1344 (1959) (concluding that the state could not prosecute individuals for refusing to testify before a legislative committee when committee members informed those individuals they could invoke the state privilege against self-incrimination). This defense is typically offered to negate the intent element of a charged crime. On this issue, the state agrees that good-faith reliance on an official interpretation of the law is an available defense when intent is an element of the charged crime.

Accordingly, we answer the first certified question in the affirmative.

II.

Reasonableness

We next address the second certified question. In this case, the district court concluded that defendant’s reliance on the advice of counsel and on an official interpretation of the law was unreasonable as a matter of law, and, thus, could not be available as a defense.

A. Reliance on the Advice of Counsel

In excluding evidence that defendant relied on the advice of his attorney, the district court stated:

[Defendant’s civil attorney] has been silent to this point and although Defendant claims he will waive his privilege, it is not hard to imagine [his attorney] asserting his Fifth Amendment right -and refusing to -testify. Or, he may be reluctant to admit that he advised his client on the basis of a letter that did not even mention the charges with which the client is now charged. Third, the potential- for collusion is enormous.

The district court’s conclusion that defendant’s reliance on the advice of his attorney was unreasonable is speculative. At the time it made its ruling, the court was unaware of the contents of defendant’s civil attorney’s testimony. It was premature to exclude defendant’s attorney’s testimony without first determining if such testimony was relevant to defendant’s intent to procure unlawful voting and to commit forgery. The district court erred in' concluding, at this stage, that any reliance by defendant on his attorney’s advice was unreasonable as a matter of law. The district court has to wait' for the substance of defendant’s attorney’s advice to be disclosed before making a determination as to relevancy.

We need to carefully explain our ruling. We have concluded that a specific “intent to conspire” is an essential element of the crimes charged. Thus, we have concluded that the defendant has the right to attempt to negate his criminal intent by offering evidence of his good-faith reliance on the advice of counsel.and his good-faith reliance on an official interpretation of the law. This does not mean that under any and all circumstances the defendant can offer any evidence he wants. Both parties in a criminal case are subject to the standard rules of relevancy and evidence. See generally, State v. Buchanan, 431 N.W.2d 542, 550 (Minn.1988) (stating that defendant’s constitutional right to give testimony must be balanced against relevancy requirement); State v. Wolf, 592 N.W.2d 866, 868 (Minn.App.1999) (stating that in a criminal case defendant has right to present a defense in accordance with the rules of evidence); Minn. R. Evid. 401 (stating that “ ‘relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”) At this stage, on this record, the defendant has met his burden of production and relevancy. A trial ruling on the relevancy of defendant’s civil attorney’s testimony cannot be had until the testimony is proffered. The district court may conduct its determination on an in camera basis and/or pursuant to sworn affidavits, or some other reasonable means, that will provide a sufficient record if meaningful appellate review is to be sought later on.

Perhaps to explain, we will put this in the context of an issue, of which there is no doubt as to its relevancy and its availability to a criminal defendant. The State of Minnesota recognizes the defense of self-defense. ' See MinmStat. § 609.06 (2002) (authorizing use of reasonable force in self-defense); Minn.Stat. § 609.065 (2002) (allowing the justifiable taking of a life in self-defense). Thus, a district court could never say that “there isn’t any self-defense in any court; I don’t believe in it.” But having said that, a defendant seeking a jury instruction' on self-defense has to somehow get into evidence enough facts for the district court to decide that a jury instruction on self-defense is warranted. For instance, if a criminal defendant were on trial for the murder of his father-in-law, he would not be entitled'to an instruction on the defense of self-defense if the only evidence offered was his own testimony that he had a dream that his father-in-law was thinking about hurting him. So based on that dream, he loads his shotgun, drives over to his father-in-law’s house in the middle of the night, sneaks into the house, finds his father-in-law sleeping in bed, and shoots him in his sleep at point-blank range. If the only evidence a defendant could come up with was this version of what he dreamed, he would not get a jury instruction on self-defense, even though self-defense is, without question, available to defendants. The built-in restriction is that it is available to defendants where there is at least some modest showing of relevance. So it is here. As an appellate court, we are not forecasting advisory rulings on evidentiary issues that may or may not come up during the defendant’s trial. What we are doing is answering the two certified questions the district court posed to us in an affirmative manner, pointing out that specific intent is an essential element of the crime of conspiracy and that defendants offered evidence is relevant on the issue of his intent. Defendant’s attorney’s proffered evidence has yet to be established. It is our intent in answering the two certified questions in the way that we have to give guidance to the district court when it hears the testimony of defendant’s attorney.

B. Reliance on an Official Interpretation of the Law

In concluding that defendant’s and his attorney’s reliance on Prokopowicz’s letter was unreasonable the district court stated:

First, any reliance by the Defendant or [his civil attorney] on the letter written by Mr. Prokopowicz is, in the view of this Court, unreasonable. Again, the letter deals only with Ch. 260 and not with Ch. 609. The two sets of circumstances — members of the M.P.D. registering to vote where they work rather than where they live and nearly one hundred persons claiming to live in an adult men’s club in order to vote in a Mayoral race — are entirely different.

The court also noted that defendant’s case was different from McKown because the defendants in McKown relied on a statute, whereas the defendant in this case relied on a letter from a prosecutor on an unrelated matter.

Prokopowicz’s letter stated:

Our preliminary investigation indicates that all the officers were eligible to vote at the time of the registration. There is no evidence to suggest that the officers improperly registered for the purpose of voting in more than one precinct or misrepresented their identity when attempting to register to vote. In some instances, officers reported that given the nature of their work and concern for the safety of their family, they registered in the precinct where they worked to avoid having their home addresses made public. Therefore, we find no criminal violation of Minn.Stat. § 201.054.

The district court prematurely excluded this letter and any testimony by defendant’s civil attorney regarding this letter. Even though defendant did not rely on a statute, as in McKown, he relied on a prosecutor’s opinion regarding similar charges. A reasonable person reading the Prokopowicz letter could form a good-faith opinion that under certain circumstances a person may register where the person works to keep his or her home address secret. That rationale easily extends to an ecdysiast (stripper) working at an adult men’s club as well as to law enforcement. An ecdysiast may also feel a profound need to keep private her home address.

The district court improperly concluded that defendant’s and his attorney’s reliance on Prokopowicz’s letter was unreasonable, as a matter of law.

We answer the second certified question in the affirmative.

III.

Due Process

Defendant also argues that the district court violated his due-process right to present a defense and explain his conduct by excluding evidence relating to his defenses that he acted in good-faith reliance on the advice of counsel or on an official interpretation of the law. Although defendant presented this argument to the district court, the court did not address it, and the state chose not to address this argument in its brief. We conclude that whether rebanee on the advice of counsel or on an official interpretation of the law, evidence of reliance is admissible as a part of defendant’s due-process right to explain his conduct.

Criminal defendants have a due-process right to give the jury an explanation of their conduct even when their motive is not a valid defense. State v. Rein, 477 N.W.2d 716, 719 (Minn.App.1991), review denied (Minn. Jan. 30, 1992); see State v. Wiltse, 386 N.W.2d 315, 318 (Minn.App.1986) (finding reversible error where the district court excluded defendant’s explanation for being present at the scene of the alleged crime), review denied (Minn. June 30, 1986). When a defendant alleges a violation of his constitutional rights, evi-dentiary challenges are reviewed under an abuse-of-discretion standard. State v. Profit, 591 N.W.2d 451, 463 (Minn.1999). “[Ejvery criminal defendant has the right to be treated with fundamental fairness and ‘afforded a meaningful opportunity to present a complete defense.’ ” State v. Richards, 495 N.W.2d 187, 191 (Minn.1992) (quoting California v. Trombetta, 467 U.S. 479, 485, 104 S.Ct. 2528, 2532, 81 L.Ed.2d 413 (1984)). The Minnesota Supreme Court has considered “it fundamental that criminal defendants have a due process right to explain their conduct to a jury.” State v. Brechon, 352 N.W.2d 745, 751 (Minn.1984).

The district court improperly excluded all attempts by defendant to explain his actions. Assuming that defendant relied on the advice of his civil attorney about a letter concerning alleged voter-registration fraud on the part of Minneapolis police officers, he had a right to explain this to the jury. Both the letter and defendant’s civil attorney’s testimony were relevant to explain defendant’s conduct and to negate his intent to conspire to procure unlawful voting and to commit forgery.

The district court’s concern about collusion is speculative and better left for cross-examination and a determination by the fact-finder. Concern about an issue does not justify denying a defendant his right to present evidence on the issue of intent. Criminal defendants have a due-process right to explain the reasons for their conduct, even if the explanation is not a perfect defense. See Rein, 477 N.W.2d at 719. We can only note that any time two or more law-enforcement personnel, or two or more co-defendants, or two or more witnesses for a defendant have essentially the same testimony, “you could have a concern about collusion.” However, that cannot denigrate any witness’s right to take the stand, be sworn, and recall evidence as best they can. When, criminal defendants do not waive a jury, the issue of their credibility and the credibility of their witnesses is for the jury, not the trial judge.

To prove conspiracy, the state must prove beyond a reasonable doubt (1) an agreement with another to commit a crime, and (2) an overt act in furtherance of the conspiracy. State v. Olkon, 299 N.W.2d 89, 104 (Minn.1980). The required mental state for the crime of conspiracy is intent, not knowledge. State v. Brown, 455 N.W.2d 65, 69 (Minn.App.1990), review denied (Minn. July 6, 1990). “A conscious and intentional purpose to break the law is an essential element of the crime of conspiracy and consists of two distinct crimes: the conspiracy and the substantive crime, which is the object of the conspiracy.” State v. Kuhnau, 622 N.W.2d 552, 556 (Minn.2001). “Criminal liability for conspiracy is predicated upon personal guilt... .A person cannot become a party to or criminally responsible for the criminal acts of another unless he knows their true character.” State v. Burns, 215 Minn. 182, 188, 9 N.W.2d 518, 521 (1943) (citations omitted). For example, “[a] defendant cannot be found guilty of conspiracy to cheat and defraud unless it be shown that he and the other alleged conspirators had a common purpose to cheat, and defraud and each of them understood that the others had such purpose.” Id. at 189, 9 N.W.2d at 521 (citations omitted).

To satisfy due process, the state must prove every element of a crime beyond a reasonable doubt. Patterson v. New York, 432 U.S. 197, 204, 97 S.Ct. 2319, 2324, 53 L.Ed.2d 281 (1977); In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368 (1970); State v. Auchampach, 540 N.W.2d 808, 816 (Minn.1995). The state may not impose on the defendant the burden of persuasion to disprove or negate an element of the crime. State v. Hage, 595 N.W.2d 200, 204 (Minn.1999). “Accordingly, if the mitigating circumstance or issue disproves or negates an element of the crime charged, the greatest burden a state may impose upon a defendant is that of shouldering the burden of production.” Id. at 205; see State v. Charlton, 338 N.W.2d 26, 30-31 (Minn.1983) (defendant had only burden- of production regarding claim of duress because otherwise he would be forced to- disprove or negate his intent to commit robbery where intent was element of crime). A defendant meets this lesser burden by making “a prima facie showing that the proffered defense is an issue in the case,” at which point the burden of persuasion reverts to the State to prove beyond a reasonable doubt that the defense does not exist.' Hage, 595 N.W.2d at 205.

Defendant satisfied his burden of production for his proffered defenses. As stated before, “a conscious and intentional purpose to break the law is an essential element of the crime of conspiracy.” See Kuhnau, 622 N.W.2d at 556. The state conceded that an attorney’s advice to a defendant might be offered to negate the essential element of a crime. Because intent to conspire is an essential element of the crime of conspiracy, the evidence presented by defendant may negate his intent to conspire to procure unlawful voting and commit forgery.

Defendant introduced the Prokopowiez letter, where Prokopowiez gave an opinion that Minneapolis police officers that registered to vote where they worked, because of privacy concerns, rather than where they lived, did not violate voter-registration and election laws. Defendant’s affidavit stated that defendant’s civil attorney showed defendant a copy of Prokopowicz’s letter and a book containing Minnesota’s voting and election laws. The affidavit also stated “[w]ith [his attorney’s] counsel and advice, and relying on a review of Minnesota’s election laws and the letter by Mr. Prokopowiez, I and several of my employees devised a plan to get people to register to vote using Jakes as a residence.” If defendant received advice from his attorney that it was acceptable to register people using his business address as their place of residence, this evidence could negate his intent to commit conspiracy to procure unlawful voting and forgery. That evidence does not “have to” negate intent, but it could, depending on how the jury saw the testimony. That is a decision for the fact-finder. See Minn.Stat. § 609.075 (2002) (stating that while voluntary intoxication is not' an absolute defense, “when a particular intent or other state of mind is a necessary element to constitute a particular crime, the fact of intoxication may be taken into consideration in determining such intent or state of mind.”). This close parallel is the standard jury instruction on intoxication, when the charged crime is a crime involving specific intent. Jurors do not have to regard a defendant’s voluntary intoxication as a complete defense. They might not even take it seriously on the issue of whether the defendant was too drunk to form a specific intent. But a defendant is entitled to that instruction and can, at least, argue his intoxication as bearing on his lack of intent. So it is here. This evidence could show that defendant acted in good faith when he relied on the advice of his attorney and on Prokopowicz’s opinion about officers who had voted in precincts where they worked rather than where they lived. The state did not attempt to negate this evidence but simply sought to exclude it, arguing , relevance, and argued that “it could confuse the jury.” We do not understand the argument. First, “confuse the jury” does not appear in the rules of evidence. The state may be referring to relevancy, but we have already concluded the defendant’s version of what happened is relevant. We see no reason why this, evidence should confuse the jury any more than the state does from'time to time when they leave juror’s eyes glazed with hours and days of technical testimony such as can occur in criminal trials involving DNA evidence, expert testimony on ballistics, bodily fluids, etc., or a complicated securities fraud criminal case where expert after expert testifies about SEC regulations. If one side or the other in a criminal case “confuses the jury,” that side might suffer. That is up to the jury.

DECISION

We answer the first certified question in the affirmative. Good-faith reliance on the advice of counsel and/or on an official interpretation of the law is an available defense to a defendant charged with a specific intent crime. We answer the second certified question in the affirmative. The defenses- are available to Jacobson given the district court’s premature conclusion that any reliance was unreasonable. The advice of defendant’s civil attorney is available on the issue of intent as long as it meets the basic threshold of relevancy.

Jacobson has a due-process right to present a defense and explain his conduct. Jacobson satisfied his burden of production when he offered evidence that he relied on the advice of his attorney and on an official interpretation of the law.

Reversed and remanded.

      . Defendant's attorney saw a newspaper article about the officers, and requested and obtained a copy of the letter from Prokopowicz.

      . The standard jury instruction regarding voluntary intoxication states:
      It is not a defense to a crime that the defendant was intoxicated at the time of the act if the defendant voluntarily became intoxicated. However, if it is an element of a crime that the defendant had a particular intent, you should consider whether the defendant was intoxicated, and if so, whether the defendant was capable of forming the required intent.... However, the State must prove beyond a reasonable doubt that the defendant had the required intent.
      10 Minnesota Practice, CRIMJIG 7.03 (1999); see also State v. Pilcher, 472 N.W.2d 327, 337 (Minn.1991) (encouraging the use of this instruction over other instruction language).


author: HUDSON, Judge.

text:
    STATE of Minnesota, Respondent, v. Richard ANYANWU, Appellant.
    No. A03-1418.
    Court of Appeals of Minnesota.
    June 22, 2004.

      Mike Hatch, Attorney General, St. Paul, MN; and Amy Klobuchar, Hennepin County Attorney, David C. Brown, Assistant County Attorney, Minneapolis, MN, for respondent.
    John M. Stuart, State Public Defender, Richard Schmitz, Assistant Public Defender, Minneapolis, MN, for appellant.
    Considered and decided by LANSING, Presiding Judge; WILLIS, Judge; and HUDSON, Judge.
   OPINION

HUDSON, Judge.

Appellant Richard Anyanwu challenges his conviction based on a plea agreement that was negotiated with the court, arguing that the district court impermissibly became a direct participant in the plea negotiations. Because the district court erred by improperly injecting itself into the plea agreement negotiations and promising a particular sentence in advance, we reverse arid reriiand.

FACTS

Appellant Richard Anyanwu allegedly shot H.I. while she was seated in her car, in her garage. The state charged Anyan-wu with attempted first-degree murder, and first- and second-degree assault. The district court held a plea hearing, in which the state sought the statutory maximum sentence of 240 months. The presumptive guidelines sentence was 180 months. Defense counsel indicated that Anyanwu would plead guilty to all three counts “in a straight plea to the Court with the understanding that the Court would give him a sentence of 210 months in prison.” The district court promised Anyanwu a 210-month sentence, noting “The Court is agreeing to, if [Anyanwu] pleads guilty, to give a sentence to the Commissioner of Corrections for 210 months.” The prosecutor objected to any disposition other than 240 months in prison and noted, “the record should be clear that this is an agreement between the defense and the Court and that the State is not a party to it.” Anyanwu did not object to the district court’s promise of a 210-month sentence.

At sentencing, the district court imposed a 210-month sentence, an upward departure of 30 months from .the presumptive guidelines sentence. The prosecutor again noted, “This was a straight plea to the Court with an agreed upon sentence of 210 months .. land] the State does object to a disposition of anything less than 240 months.”

Anyanwu did not move to withdraw his guilty plea. Instead, Anyanwu filed this direct appeal.

ISSUES

I. Is a conviction erroneous when it is based on a plea agreement negotiated with the court?

II. Should the departure-from the presumptive guidelines sentence be vacated because the state did not give timely notice of its intention to depart from the presumptive guidelines sentence and because the district court erred in failing to file a departure report?

. ANALYSIS

I

Anyanwu argues that his conviction should be vacated because the district court impermissibly became a direct participant in the plea negotiations. He asserts that the case must be remanded to a different judge to allow him the opportunity to withdraw his plea. The state concedes that the district court erred in promising a particular sentence in advance, but contends that Anyanwu did not object to this error and has failed to show that the error prejudiced him by affecting his substantial rights.- We acknowledge the procedural and substantive irony of an appeal in which the district court granted appellant precisely what he requested. But a defendant has a" right to -challenge his guilty plea on direct appeal even though he has not moved to withdraw the guilty plea in the district court. State v. Newcombe, 412 N.W.2d 427, 430 (Minn.App.1987), review denied (Minn. Nov. 13, 1987). In addition, a defendant cannot waive the right to appeal a sentence. Ballweber v. State, 457 N.W.2d 215, 218 (Minn.App.1990). The sentence imposed here, although agreed on by Anyanwu, was an upward departure from the presumptive sentence, which Anyanwu could challenge on appeal. See generally State v. Misquadace, 644 N.W.2d 65, 72 (Minn.2002) (holding a plea agreement by itself may not support a sentencing departure). Although Anyanwu is not directly challenging the sentencing departure here, we conclude that he should not be precluded from challenging the process by which it was imposed. Just as a defendant may invoke the policies of the sentencing guidelines to challenge a sentence to which he has agreed, a defendant should be permitted to vindicate the policies safeguarding the plea bargaining process on appeal even though he has validly entered a plea of guilty. Furthermore, the case law is clear that a district court should not usurp the responsibility of counsel or become excessively involved in plea negotiations and may not improperly inject itself into plea negotiations. See State v. Johnson, 279 Minn. 209, 215-16, 156 N.W.2d 218, 223 (1968); State v. Moe, 479 N.W.2d 427, 429 (Minn.App.1992), review denied (Minn. Feb. 10, 1992). It is improper for a district court to promise a particular sentence in advance. State v. Vahabi, 529 N.W.2d 359, 361 (Minn.App.1995). Thus, appellant’s failure to object to the court as a party to the plea arrangement is not fatal to his claim because the arrangement itself is impermissible.

The state also contends that Any-anwu has not demonstrated any prejudice because his plea was knowing, voluntary, and intelligent, and the record supports the limited upward departure. We agree that Anyanwu’s plea was accurate, voluntary, and intelligent. The complaint in this matter indicates that Anyanwu had already confessed to the shooting, and An-yanwu did not make any claim of innocence at the time of the plea or at sentencing. In addition, Anyanwu completed a Rule 15 petition and went through an extensive waiver of his trial rights on' the record and affirmed that his plea was voluntary. Moreover, Anyanwu likely benefited from the error because he received a lesser sentence than what the state was recommending to the court. But again, irrespective of any demonstrated prejudice, the law is clear that a guilty plea is per se invalid when the district court im-permissibly injects itself into plea negotiations. Moe, 479 N.W.2d at 429-30.

The Minnesota Supreme Court has disapproved of district court participation in plea bargains. See Johnson, 279 Minn. at 215-16, 156 N.W.2d at 223; State v. Nelson, 257 N.W.2d 356, 359 n. 1 (Minn.1977). In Johnson, the Minnesota Supreme Court defined the role of the district court in guilty plea negotiations, noting:

The ultimate judicial responsibility must be to make reasonably certain that a person innocent of any crime has not been improperly induced to plead guilty to a crime. It is likewise a judicial responsibility to protect society against a defendant’s being permitted to bargain for a plea excessively lenient for the gravity of the crime apparently in fact committed.... [T]he court should neither usurp the responsibility of counsel nor participate in the plea bargaining negotiation itself.

Johnson, 279 Minn. at 215-16, 156 N.W.2d at 223. The supreme court, however, went on to cite the position taken by the President’s Commission on Law Enforcement and Administration of Justice in noting the difficulty of assessing a judge’s delicate role with regard to plea bargaining:

[T]he agreed disposition should be openly acknowledged and fully presented to the judge for review before the plea is entered. Inevitably the judge plays a part in the negotiated guilty plea. [The judge’s] role is a delicate one, for it is important that [the judge] carefully examine the agreed disposition, and it is equally important that [the judge] not undermine his [or her] judicial role by becoming excessively involved in the negotiations themselves.... The judge’s role is not that of one of the parties to the negotiation, but that of an independent examiner to verify that the defendant’s plea is the result of an intelligent and knowing choice and not based on misapprehension or the product of coercion.

Johnson, 279 Minn. at 216 n. 11, 156 N.W.2d at 223 n. 11 (quotations omitted).

When a district court injects itself into plea negotiations, it has removed itself from the role of an “independent examiner” of the plea negotiations and has stepped into the position of “one of the parties to the negotiation” by becoming “excessively involved in the negotiations themselves.” Id. Anytime a district court improperly injects itself into plea negotiations the guilty plea is per se invalid. See Moe, 479 N.W.2d at 429-30 (reversing a sentence when the state appealed because the district court participated directly in the plea negotiations without finding,that the state was prejudiced as a result of the court’s participation in the negotiations). We are not suggesting that any involvement by a district court judge in a plea negotiation is improper. We recognize that a district court judge has a delicate role in a plea negotiation and necessarily plays a part in any negotiated guilty plea. We also recognize that the court in this case may well have been imposing a sentence that it thought was appropriate to the offense. But here, the district court directly and unequivocally promised the defendant a particular sentence in advance, and forced the plea bargain on the prosecutor over the prosecutor’s objections. By doing so, the district court stepped into the position,of one of the parties to the negotiation, over the. objection of the prosecutor, and abandoned its role as an independent examiner. Therefore, Johnson and Moe compel us to reverse Anyanwu’s conviction and remand the case to allow Anyanwu the opportunity to withdraw his guilty plea.

II

In his pro se supplemental brief, Anyan-wu argues that this court should vacate the upward departure from the ■ presumptive sentence because the state did not give timely notice of its intention to seek a departure from the presumptive sentence and because the district court did not file a departure report. We need not address these issues because we reverse on the district court’s error in improperly injecting itself into the plea negotiations by promising Anyanwu a particular sentence in advance.

DECISION

The district court erred by improperly injecting itself into the plea agreement negotiations and promising a particular sentence in advance. By doing so, the district court abandoned its independent role and became an advocate. Accordingly, we reverse Anyanwu’s conviction and remand the case for reassignment to a different district court judge to allow Any-anwu the opportunity to withdraw his guilty plea.

Reversed and remanded.

      . The state also argues that the appeal should be dismissed because Anyanwu did not comply with the procedural requirements for withdrawing his guilty plea (i.e., bringing a petition for post-conviction relief or filing a timely motion to the trial court to withdraw his guilty plea). But a defendant who challenges a judgment of conviction against him based on an invalid guilty plea may seek a post-conviction hearing from the district court or may appeal directly to this court. Brown v. State, 449 N.W.2d 180, 182-83 (Minn.1989). “Post-conviction proceedings are the proper forum for presentation and evaluation of matters not of record supporting withdrawal of a guilty plea.” State v. Schaefer, 374 N.W.2d 199, 201 (Minn.App.1985). But a direct appeal is appropriate when the record contains factual support for the defendant’s claim and when no disputes of material fact must be resolved to evaluate the claim on the merits. See Alanis v. State, 583 N.W.2d 573, 577 (Minn.1998); State v. Newcombe, 412 N.W.2d 427, 430 (Minn.App.1987), review denied (Minn. Nov. 13, 1987). Anyanwu bases his challenge entirely on matters in the record, and no material fact disputes exist; therefore, Anyanwu properly appeals his judgment of conviction directly to this court.