author: KALITOWSKI, Judge.

text:
    STATE of Minnesota, Respondent, v. Elton Perez VANCE, Appellant.
    No. A03-1632.
    Court of Appeals of Minnesota.
    Aug. 31, 2004.

      Mike Hatch, Attorney General, St. Paul, MN, and James C. Backstrom, Dakota County Attorney, Helen R. Brosnahan, Assistant County Attorney, Dakota County Judicial Center, Hastings, MN, for respondent.

      John M. Stuart, State Public Defender, Bridget Kearns, Assistant Public Defender, Minneapolis, MN, for appellant.
    Considered and decided by HARTEN, Presiding Judge; KALITOWSKI, Judge; and ANDERSON, Judge.
   OPINION

KALITOWSKI, Judge.

Appellant challenges his convictions of second-degree assault, third-degree criminal sexual conduct, and three counts of first-degree criminal sexual conduct. Appellant contends that the district court erred in admitting expert testimony on battered-woman syndrome and in imposing an upward sentencing departure.

FACTS

Appellant Elton Perez Vance and the victim, A.S.T., began an on-and-off relationship in 1996; and appellant is the father of the victim’s children. On the afternoon of February 2, 2003, the victim called 911 and reported that appellant had been beating her all day at her apartment. At trial, the 911 dispatcher testified, and a tape of the call was played for the jury. Crying and upset, the victim told the dispatcher that she had recently escaped to a neighbor’s apartment with one of her children and that appellant was still in her apartment either sleeping or passed out from alcohol with one of her other children. Although the victim denied that appellant had threatened her with any weapon, she told the dispatcher that appellant had cut her hair again and had beaten her with his fists.

Three Eagan police officers responded to the 911 call and testified at trial. While one officer secured appellant’s location, two officers spoke with the victim. The officers testified that the victim was crying and very upset. They also testified that the victim was severely beaten around the face and that her injuries included swollen lips, blaek-and-blue eyes, facial swelling, and marks, bruises, and abrasions around her neck. The victim also had several cigarette burns on her body, and her shirt and body were wet with urine. The police took photographs of the victim and her injuries.

The victim told the police officers that appellant was still in her apartment and gave them permission to enter her apartment and remove appellant. Upon entering the victim’s apartment, officers discovered appellant asleep on a mattress with a child lying near him. The police officers arrested appellant. The police informed appellant that he was being taken into custody because they believed he had committed third-degree assault against the victim and explained that it was third-degree assault because the victim had been burned. According to the police, appellant stated, “Now you’re going to tell me that I burned my baby’s mommy with cigarettes, too.” But the police had never told appellant what had caused the victim’s burns. Appellant repeatedly stated, “I didn’t do sh-t” and inquired whether the victim was pressing charges. The police told appellant that in domestic assault situations, the police press charges to relieve the victim from the burden. Appellant replied that the victim had done this before, she would not show up to court, and he would “beat this thing.”

While the police officers were arresting appellant, a paramedic talked with the victim. The paramedic testified that the victim was crying, very upset, disheveled, and bleeding. The paramedic also testified that the victim had multiple abrasions down her neck; swollen lips; severe facial swelling; bruising all over her body including on her neck, chest, side, and back; cigarette burns all over her body; and a large part of her hair had been cut off. The victim told the paramedic that appellant had repeatedly forced her to have oral and vaginal sex -with him, burned her with a cigarette, cut her hair, choked and strangled her, punched and kicked her, and urinated on her. The victim stated she had resisted the first few times appellant had sexually assaulted her, but she stopped resisting when appellant beat her even more severely.

After arresting appellant, one of the police officers spoke with the victim. In addition to reiterating earlier statements she had made to the police, the victim told the officer that appellant had cut off clumps of her hair with a kitchen knife, repeatedly forced her to have oral and vaginal sex, and repeatedly burned her with a cigarette.

The police officers searched the victim’s apartment for evidence and photographed and collected a steak knife, a cigarette butt found near the mattress where appellant had been sleeping prior to his arrest, clumps of the victim’s hair, and two or three of the victim’s T-shirts that were covered with blood and urine.

The victim was transported to a local hospital where a nurse with the Sexual Assault Forensic Examination (SAFE) program examined and treated her. The victim told the nurse that appellant had beaten her and repeatedly forced her to have oral and vaginal sex with him. The nurse observed and noted the victim’s numerous visible injuries and testified that the results and findings of her examination were consistent with the victim’s report of sexual assault. The police again interviewed the victim at the hospital, and she repeated much of what she had already told the police, the paramedic, and the nurse.

The following day, the police again interviewed the victim and noted her numerous injuries. Consistent with what she had already told the police, the paramedic, and the nurse, the victim relayed the events of the previous day. Specifically, the victim explained that appellant was the father of her children, that she and appellant had been romantically involved, that they had broken up, but they were trying to work things out. The victim explained that appellant had begun drinking on the night of February 1 and then proceeded to beat her by punching and choking her. The victim further explained that appellant forced her to perform oral sex on him four or five times and forced her to have vaginal intercourse four or five times. The victim stated that these assaults took place in the living room until the children woke up and then they occurred in a back bedroom. The victim further stated that appellant burned her with a cigarette numerous times, cut her hair with a knife, urinated on her, refused to allow her to get dressed, and refused to allow her to use the bathroom.

Appellant was charged with second-degree assault, third-degree criminal sexual conduct, and three counts of first-degree criminal sexual conduct. At appellant’s first court appearance, the district court ordered appellant to abstain from all contact with the victim. But prior to trial, there was evidence that appellant was violating the court’s no-contact order by calling the victim from jail. The district court subsequently revoked appellant’s phone privileges. But the following day, appellant’s fellow inmate called the victim and warned her to “lay low.” The district court then ordered appellant to be held in segregation. Prior to trial, it became evident that the victim was no longer willing to cooperate in the prosecution of appellant, and a subpoena was served on her to compel her testimony at appellant’s trial. When the victim failed to appear on the subpoena, she was arrested and held as a necessary witness.

At trial, the victim’s testimony about the incident differed substantially from what she had recounted to the police, the paramedic, and the nurse. The victim admitted that she and appellant had fought on the day in question, but testified that she could not remember the details of the fight, how she received her injuries, what occurred at the hospital, or what she told law enforcement officials. The victim also testified that she and appellant had consensual sexual relations on a daily basis in January and February 2003. She specifically testified that she and appellant had sex on February 2, 2003, and that the sex was consensual. But the victim also testified that she could not remember having consensual sex with appellant on February 2 between 5 a.m. and 3 p.m. The victim further testified that neither reviewing the statements she made to law enforcement officials nor reviewing the photographs of herself taken on the day of the incident would refresh her memory, and the state did not attempt to directly impeach the victim with her earlier statements.

The victim admitted that she did not want to testify, that she was being held in custody to ensure that she testified, and that she still loved appellant and wanted to work things out with him. The victim also admitted that she had talked to appellant on the phone many times between the time he was arrested and the time of the trial and that she sent him numerous letters and money for telephone calls and personal items. The victim further admitted that appellant had attempted to persuade her to contact the prosecutor or court and recant, although she testified that it was also her choice to contact the prosecutor and court. But the victim also admitted that appellant demanded that she send him letters and money. And at trial, the state presented evidence that appellant had called more than 100 times from jail, and the jury heard several of those conversations on audiotape. During the taped telephone conversations, appellant demanded that the victim call law enforcement officials and change her earlier statements to the police.

After hearing testimony from all of the state’s witnesses, the district court granted the state’s motion to present expert testimony on battered-woman syndrome. The district court reasoned that many people did not understand battered-woman syndrome, that the victim’s “behavior might be very difficult for a jury to understand,” and that one of the purposes of expert testimony is to help the jury understand things that are not common knowledge. Prior to the expert’s testimony, the court instructed the jury that it was going to hear testimony on battered-woman syndrome, that the testimony was being received for the limited purpose of allowing them to hear evidence on the syndrome, that- admission of the testimony did not mean that the victim actually suffered from the syndrome or that the syndrome even existed, and that those were fact questions for the jury to decide.

The witness, a clinical psychologist and expert on battered-woman syndrome, testified about the common characteristics of the syndrome, including terror, acceptance of blame for the abuse, minimization or denial of the abuse, depression, isolation, avoidance of reporting the abuse, recantation of the original report of abuse, fear of retaliation, and loss of self-worth. The expert also described the reasons a battered person may stay in a violent relationship and the impact of the presence of children and how that plays a role in the dynamics of an abusive relationship. The expert further explained that sexual violence is very common in an abusive domes-tie relationship and testified regarding . many of the common'misperceptions about abusive domestic relationships.

The jury found appellant guilty on all five counts. And the district court sentenced appellant to 288 months, a double upward departure, for the first-degree criminal sexual conduct conviction and a concurrent 21-month sentence for the assault conviction.

ISSUES

1. Did the district court err in allowing the state to present expert testimony on battered-woman syndrome?

2. Did the district court err in imposing an upward durational departure at sentencing?

ANALYSIS

I.

Appellant first argues that the district court erred in admitting the expert witness’s testimony on battered-woman syndrome. We disagree. The admission of expert testimony is within the broad discretion accorded a district court and this court will not reverse absent a clear abuse of discretion. State v. Ritt, 599 N.W.2d 802, 810 (Minn.1999). When considering whether to admit expert testimony, the district court must determine whether the testimony will assist the jury in resolving factual questions presented at trial. Minn. R. Evid. 702. But when deciding whether to admit expert testimony, the district court must also balance the relevance of the testimony against the danger of creating unfair prejudice, the potential for confusing or misleading the jury, and other concerns. Minn. R. Evid. 403.

The Minnesota- Supreme Court first addressed whether and to what extent the prosecution could present expert testimony on battered-woman syndrome in State v. Grecinger, 569 N.W.2d 189 (Minn.1997). Compare State v. Hennum, 441 N.W.2d 793, 798 (Minn.1989) (addressing under what circumstances a criminal defendant can present expert testimony on the syndrome in support of a self-defense theory). In Grecinger, the court stated that the prosecution’s use of expert testimony on battered-woman syndrome is admissible under Minn. R. Evid. 702 if it helps the jury understand behavior that might otherwise undermine the victim’s credibility. 569 N.W.2d at 196. But to ensure that a defendant is not unfairly prejudiced, an expert may not testify as to whether a complainant or witness actually suffers from the syndrome, suggest that the complainant was battered, was truthful, or fit the battered-woman syndrome, or express an opinion as to whether the defendant is a batterer. Id. at 196-97.

Appellant first argues that the district court erred in admitting the expert testimony on battered-woman syndrome because neither he nor the state attacked the victim’s credibility. But at trial, appellant did not object to admission of the expert testimony on this ground. Instead, appellant initially argued that the district court should exclude the expert testimony because it was not necessary if the victim testified consistent with the police reports and the criminal complaint. And subsequently, when the district court was considering whether to admit the testimony after all of the state’s other witnesses had testified, appellant argued that the testimony was unnecessary because the jury was' capable of interpreting the evidence and drawing its own conclusions. Thus, appellant may have waived the argument he is raising on appeal. But even if appellant did not waive this argument, we conclude that the district court did not err in admitting the expert testimony on battered-woman syndrome.

Appellant contends that under Grecinger and Minn. R. Evid. 608(a), the prosecution may only present expert testimony on battered-woman syndrome in its case-in-chief if the defendant first attacks the complainant’s credibility. We disagree.

In Grecinger, the victim testified at trial that the defendant, her former boyfriend, had assaulted and attempted to kill her approximately three years earlier. 569 N.W.2d at 190-92. The defense attacked the victim’s credibility in its opening statement and during its cross-examination of the victim. Id. at 192-93. In turn, the district court allowed the prosecution to present in its case-in-chief expert testimony on battered-woman syndrome to explain why the victim had waited nearly three years after the appellant had assaulted her to pursue prosecution, returned to the relationship with the appellant after the assault, told contradictory stories about how her injuries were inflicted, and recanted statements she made after the assault. Id. at 193. Essentially, the prosecution presented the expert testimony to bolster the victim’s credibility at trial. The Grecinger court concluded that the district court properly admitted battered-woman syndrome testimony during the prosecution’s case-in-chief because by the time it was presented, the victim’s credibility “was already at issue.” Id. at 194.

Similarly, we conclude that here the district court properly admitted expert testimony on battered-woman syndrome during the prosecution’s case-in-chief because by the time it was presented, the victim’s credibility was already at issue. At trial, the jury heard the testimony of the three police officers who had responded to the 911 call, the paramedic who had talked with the victim after the incident, and the nurse who examined the victim at the hospital. These witnesses described the victim’s injuries following the incident, including multiple abrasions and bruises on her face, neck, chest, sides, and back; swollen lips; severe facial swelling; numerous cigarette burns all over her body; and a large chunk of her hair missing. And photographs taken by the police and admitted into evidence show these injuries. The witnesses also testified how the victim had told them that appellant had repeatedly punched and kicked her, burned her with a cigarette, choked and strangled her, urinated on her, cut her hair with a kitchen knife, and repeatedly forced her to have oral and vaginal sex with him. Moreover, the nurse testified that the results and findings of her examination were consistent with the victim’s report of sexual assault.

At trial the victim recanted her earlier account of the incident. Although the victim admitted that she and appellant had fought on the day in question, she testified that appellant did not force her to have oral or vaginal sex with him and all sex between them was consensual. She also testified that she could not remember the details of the fight, how she received her injuries, what occurred at the hospital, or what she told law enforcement officials. The prosecution did not impeach the victim with her earlier statements to the police and health professionals. Nor did the defense attempt to impeach the victim, which is not surprising given that the victim’s testimony was largely favorable to appellant. But even though neither the prosecution nor the defense attempted to directly impeach the victim, we conclude that the victim’s credibility was at issue by the time the prosecution presented the battered-woman syndrome testimony. And therefore, we conclude that the district court properly admitted this testimony during the prosecution’s case-in-chief.

In support of his argument that expert testimony on battered-woman syndrome is only, admissible if the defense first attacks the victim’s credibility, appellant quotes Grecinger’s statement that this evidence is admissible “if it is introduced after the victim’s credibility has been attacked by the defense.” 569 N.W.2d at 197. But we conclude that this language is dicta that the supreme court included based on the specific circumstances of that case. Unlike Grecinger, where the victim provided the strongest testimony indicating the defendant’s guilt, here there was no need for the defense to attack the victim’s credibility. At trial the victim recanted her story and gave testimony that largely exculpated appellant, particularly on the most serious criminal sexual conduct offenses. On these facts, the district court properly admitted expert testimony on battered-woman syndrome to explain why the victim had recanted her story.

Our decision is supported by this court’s recent decision in State v. Plantin, 682 N.W.2d 653, 662 (Minn.App.2004), pet. for review filed (Minn. Aug. 11, 2004), where we held that the district court did not abuse its discretion in admitting battered-woman syndrome testimony where the prosecution offered the testimony to explain why the victim recanted her story at trial and gave testimony that tended to exculpate the defendant.

Our decision is also consistent with Grecinger, 569 N.W.2d at 195, and the Eighth Circuit Court of Appeals. See Arcoren v. United States, 929 F.2d 1235 (8th Cir.), cert. denied, 502 U.S. 913, 112 S.Ct. 312, 116 L.Ed.2d 255 (1991). In Arcoren, the defendant’s wife told a federal grand jury that the defendant had beaten and raped her, but she later recanted at the defendant’s trial. Id. at 1237-38. Over the defendant’s objections, the district court permitted the prosecution to present expert testimony on battered-woman syndrome, and the jury subsequently convicted the defendant. Id. at 1238-39. And in a footnote citing many foreign cases, Gre-cinger notes that many other states had determined that expert testimony on battered-woman syndrome was admissible, and in most cases, “such testimony was permitted in cases in which the victim recanted her earlier allegation of abuse.” 569 N.W.2d at 195 n. 10. Therefore, substantial caselaw supports our conclusion that where the alleged victim’s testimony is at issue, the district court may admit testimony on battered-woman syndrome, during the prosecution’s case-in-chief, even if neither party directly attacks the victim’s credibility.

II.

Appellant also challenges the district court’s imposition of an upward dura-tional departure. Here, the district court sentenced appellant to 288 months for the first-degree criminal sexual conduct conviction, which was a double upward departure, and a concurrent 21-month sentence for the second-degree assault. In support of the upward departure, the district court found that appellant: (1) held the victim captive for a significant period of time; (2) treated the victim with particular cruelty by inflicting multiple painful cigarette burns all over her body, repeatedly beating her, cutting her hair, and urinating on her face and upper body; (3) penetrated the victim in several ways; (4) committed the offenses in the victim’s home and thereby stayed beyond his invitation and violated and exploited the victim’s trust in him; and (5) committed the offenses in the presence of children.

After this appeal was briefed, the United States Supreme Court issued its opinion in Blakely v. Washington, — U.S. —, 124 S.Ct. 2531, — L.Ed.2d — (2004), holding that an upward departure under the State of Washington’s determinate sentencing scheme violated the defendant’s Sixth Amendment right to a jury trial. Appellant has cited Blakely in a letter to this court, but the application of that opinion has not been briefed. See Minn. R. Civ.App. P. 128.05 (allowing citation of supplemental legal authority without argument). Appellant did not request supplemental briefing, and we conclude that the interests of justice do not warrant addressing Blakely for the first time on appeal without any briefing on the issue. See generally State v. Sorenson, 441 N.W.2d 455, 457 (Minn.1989) (declining to address constitutional issue not fully briefed and not litigated in district court). Accordingly, we remand to the district court for a consideration of the application, if any, of Blakely to appellant’s sentence.

DECISION

Because the victim recanted her earlier allegations against appellant, the victim’s credibility was at issue. The district court did not abuse its discretion in allowing expert testimony regarding battered-woman syndrome during the prosecution’s case-in-chief, even though neither party had directly impeached the victim’s trial testimony. Therefore, we affirm the district court’s admission of the evidence but remand the issue of the upward sentencing departure to the district court for consideration of the application of Blakely, if any, to appellant’s sentence.

Affirmed in part and remanded in part.


source: Caselaw Access Project

author: ROBERT H. SCHUMACHER, Judge.

license: Public Domain

text:
    In the Matter of the Kenneth WREN, Residential Relocation Claim.
    No. A04-207.
    Court of Appeals of Minnesota.
    Sept. 7, 2004.

      James J. Thomson, Robert J.V. Vose, Kennedy & Graven, Minneapolis, MN, for relator Richfield Housing Redevelopment & Authority.
    Jon W. Morphew, Kirk Schnitker, Schnitker & Associates, P.A., Minneapolis, MN, for respondent Kenneth Wren.
    David A. Davenport, Winthrop & Wein-stine, P.A., Minneapolis, MN, for respondent Lyndale Gateway.
    Considered and decided by STONEBURNER, Presiding Judge; SCHUMACHER, Judge; and PARKER, Judge.

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

   OPINION

ROBERT H. SCHUMACHER, Judge.

On appeal by writ of certiorari in this relocation-benefits dispute, the Richfield Housing and Redevelopment Authority (HRA) argues that an administrative law judge (ALJ) erred by concluding that respondent Kenneth Wren is entitled to relocation benefits under the Minnesota Uniform Relocation Act. We affirm.

FACTS

The 7600 block of Lyndale Avenue South was first identified for redevelopment in 1985 by consultants working for the HRA. In 1999, the HRA approved a contract with CSM Properties, Inc. to redevelop the area. Wren had recently purchased a home in the proposed redevelopment area. Between January 2000 and July 2002, the City of Richfield sent Wren multiple letters updating him on the progress of the redevelopment project.

In August 2002, the HRA approved a contract with respondent Lyndale Gateway, LLC to handle the final phase of the redevelopment project. The contract contains the following clause:

It is the intention of the parties that the tracts of land which comprise the Redevelopment Property are to be acquired through a combination of direct acquisitions by [Gateway] and acquisitions by the HRA followed by conveyances to [Gateway], Unless specifically provided otherwise in this Agreement, [Gateway] shall be responsible for all acquisition costs and the cost of relocation benefits and assistance provided to any party displaced as a result of the development. It is further the intention of the parties that, whenever possible, direct acquisition by [Gateway] is preferred.

Under the contract, Gateway could request the HRA to condemn properties it was unable to acquire, and the HRA would then convey those properties to Gateway.

In September 2002, a Gateway representative mailed Wren a purchase agreement for the sale of his home. After meeting with the representative and negotiating the sale price of his home, Wren signed the purchase agreement. Clause 7 in an addendum attached to the purchase agreement states: “Seller specifically acknowledges and agrees that neither [Gateway] nor the City of Richfield shall have any obligation to pay or provide to Seller, any relocation assistance, services, payments' or benefits. Additionally, Seller expressly waives any claim to relocation assistance, services, benefits or payments.”

The closing on Wren’s home occurred in June 2003. Wren then submitted a claim for relocation benefits. An ALJ concluded that Wren was eligible for relocation benefits from the HRA because the HRA undertook the acquisition of his home and he is a displaced person within the meaning of the Minnesota Uniform Relocation Act. The ALJ also concluded that the relocation-benefits waiver contained in Clause 7 of the addendum attached to the purchase agreement between Wren and Gateway was invalid because it did not comply with Minn.Stat. § 117.521, subd. 1 (2002) (providing in part that waiver must describe type and amount of assistance property owner is eligible for and burden is on acquiring authority to show waiver was entered into voluntarily).

The HRA petitioned for reconsideration of the decision, which was denied. The HRA then filed an appeal with this court, arguing the ALJ erred in concluding that the HRA undertook the acquisition of Wren’s home. The HRA does not contest the ALJ’s conclusion that the relation-benefits waiver was invalid.

ISSUE

Did the ALJ err by concluding that Wren was eligible to receive relocation benefits from the HRA under the Minnesota Uniform Relocation Act?

ANALYSIS

Statutory construction is a question of law that we review de novo. Houston v. Int’l Data Transfer Corp., 645 N.W.2d 144, 149 (Minn.2002). An appellate court need not defer to an administrative decision on a question of law. St. Otto’s Home v. Minn. Dep’t of Human Servs., 437 N.W.2d 35, 39-40 (Minn.1989).

The Minnesota Uniform Relocation Act was created to make public funds available for relocation costs incurred by households and businesses displaced by public acquisitions of property where there is no federal financial participation. In re Relocation Benefits of James Bros. Furniture, Inc., 642 N.W.2d 91, 95 (Minn.App.2002) (superseded by statute on other grounds), review denied (Minn. June 18, 2002); see also Minn.Stat. 117.52 (2002). Under the relocation act, an acquiring authority must provide relocation benefits for “all acquisitions undertaken” by the authority. Id., subd. 1. “Acquiring authority” is defined as “the state and every public and private body and agency thereof which has the power of eminent domain.” Minn.Stat. 117.50, subd. 5(a) (2002). The term “acquisition” includes acquisitions by eminent domain and by negotiation. Id., subd. 4 (2002).

If a governmental entity undertakes acquisition of private property, the entity must pay relocation benefits to any person determined to be a “displaced person” within' the meaning of the relocation act. See James Bros. Furniture, Inc., 642 N.W.2d at 98. The relocation act defines “displaced person” as including “any person who moves from real property ... as a result of acquisition undertaken by an acquiring authority.” Minn.Stat. § 117.50, subd. 3 (2002).

On appeal, the HRA argues that it did not “undertake” the acquisition of Wren’s home and consequently it is not liable to pay Wren relocation benefits under the relocation act. The relocation act does not define the term “undertaken.” See Minn.Stat. § 117.50 (2002). The ALJ consulted the American Heritage College Dictionary in interpreting the term “undertaken” to mean “take upon oneself,” “commit oneself,” or “begin.” Because the relocation act does not define the term “undertaken,” the ALJ’s common-sense interpretation of the term is reasonable, and we conclude it is not an error of law. See Pacific Indem. Co. v. Thompson-Yaeger, Inc., 260 N.W.2d 548, 554 (Minn.1977) (stating courts are to give effect to plain meaning of the statute’s words “without resort to technical legal constructions of its terms”); Brandt v. Hallwood Mgmt. Co., 560 N.W.2d 396, 400 (Minn.App.1997) (using dictionary to interpret statutory term “construction”), review denied (Minn. June 11, 1997); Fiveland v. Bollig & Sons, Inc., 436 N.W.2d 478, 480 (Minn.App.1989) (using dictionary to interpret statutory term “defective”), review denied (Minn. Apr. 24, 1989).

After interpreting the term “undertaken,” the ALJ analyzed the history of the redevelopment project and the HRA’s involvement in it and concluded that the HRA undertook the acquisition of Wren’s home. The record supports this conclusion. The city contemplated redeveloping the 7600 block of Lyndale Avenue South since 1985; solicited proposals from developers, including Gateway, for the redevelopment project; and sent approximately 20 letters to property owners during the redevelopment to update them on the project. The letters invited property owners to contact city officials with any questions. In one letter, the city encouraged homeowners to negotiate with Gateway.

In its contract with Gateway, the HRA agreed to use its power of eminent domain if Gateway was unable to negotiate private agreements with homeowners, and the HRA did condemn some commercial properties to complete the redevelopment project. The city also established a tax increment financing district to facilitate the financing of public development and redevelopment in the project area. The record shows that the HRA was significantly involved in the redevelopment project. Under these circumstances, we conclude that the ALJ correctly determined the HRA began or “undertook” the acquisition of Wren’s home within the meaning of the relocation act.

The HRA argues that this conclusion is contrary to the holding in Gilliland v. Port Auth. of St. Paul, 270 N.W.2d 743 (Minn.1978). In that case, the port authority briefly held title to a hotel to enable the owner to receive bond sale proceeds to renovate the hotel. Id. at 747. The sale of the hotel and the leaseback arrangement between the hotel’s owner and the port authority gave the port authority no power to possess the hotel or to use it for its own purposes. Id. The supreme court held that relocation benefits were not available under the relocation act “where the governmental action causing displacement is solely the financing of a private rehabilitation project.” Id.

Gilliland is distinguishable from this case. Unlike the port authority in Gilli-land, the city has had a significant role in redeveloping the 7600 block of Lyndale Avenue South. Aside from initiating and financing the project, the city communicated regularly with property owners in the redevelopment area, solicited and contracted Gateway to acquire property in the redevelopment area, agreed to exercise its power of eminent domain if Gateway could not obtain property, and exercised its power of eminent domain to acquire commercial property within the redevelopment property. The holding in Gilliland is not dispositive in this case.

DECISION

The HRA had significant involvement in the redevelopment of the 7600 block of Lyndale Avenue South and undertook the “acquisition” of Wren’s property within the meaning of the relocation act. Wren is entitled to relocation benefits.

Affirmed.

      . The legislature amended the definition of "displaced person” in 2003. See Minn.Stat. § 117.50, subd. 3 (Supp.2003). The parties agree that this amendment does not apply in this case. And the parties do not dispute the ALJ’s conclusion that Wren is a displaced person under the relocation act.


author: RANDALL, Judge.

text:
    Richard N. FEDKE, Respondent, v. CITY OF CHASKA, et al., Appellants.
    No. A04-166.
    Court of Appeals of Minnesota.
    Sept. 7, 2004.

      James L. Berg, Chaska, MN, for respondent.
    Joseph E. Flynn, Jardine, Logan & O’Brien, P.L.L.P., Lake Elmo, MN, for appellants.
    Considered and decided by RANDALL, Presiding Judge, WILLIS, Judge, and ANDERSON, Judge.
   OPINION

RANDALL, Judge.

Respondent Richard Fedke (a civilian) sued appellants, the city of Chaska and the Chaska Police Department (the city), based on injuries he received while participating in a simulation involving a school bus accident. Fedke asserted that during the simulation, an officer from the Chaska Police Department willfully and negligently pushed him to the ground. The city moved for summary judgment based on vicarious official immunity. The district court denied the motion. On appeal from the district court’s denial of summary judgment, the city argues that the police officer’s actions involved the exercise of discretion and were not done with malice. Concluding that the essential facts in this case are not in dispute and that the matter is proper for summary judgment, we find, as a matter of law, that official immunity protects a police officer and vicarious official immunity protects Chaska and its police department. We reverse.

FACTS

On August 14, 2000, the Carver County Department of Emergency Services (CCDES) and several area emergency services agencies participated in a “critical incident simulation” involving a school bus accident. CCDES organized and directed the simulation. CCDES contacted, among other emergency services agencies, the Chaska Police and Fire Departments, requesting their assistance in the simulation.

Ben Anderson is a police officer with the Chaska Police Department. One to two weeks prior to the simulation, Anderson and other individuals representing various emergency service agencies attended a meeting organized by CCDES. At the meeting, Anderson was told that he would be the first officer to arrive at the scene of the simulation.

At the time of the simulation, respondent Richard Fedke was 70 years old and worked as a bus driver for the Salden Bus Company, which served the Chaska School District. The Salden Bus Company’s office manager asked Fedke to volunteer in the simulation. On August 14, 2000, Fed-ke and other volunteers from the Salden Bus Company met at the Chaska Middle School with CCDES county officials in charge of the simulation. The county officials informed the volunteers that the simulation would involve a school bus and car accident and that several different emergency services departments would be at the scene. Fedke and other adult volunteers were told to play the role of the parents/grandparents in the simulation. CODES personnel told the adult volunteers that those playing the roles of first responders would be slow to start so the adult volunteers, acting in their roles as emotionally upset parents and grandparents, were to do what they could with verbal prompting to put pressure on the first responders to “get moving.” This would simulate the scene if there were to be a real accident with children on the school bus and parents and grandparents hurrying to the scene. The adult volunteers were not instructed to be physically aggressive, but later to use oral prompting.

The simulation was videotaped by the Chaska School District. Anderson’s participation in the simulation commenced when he was radioed by dispatch that there was a school bus accident in Chaska. When Anderson arrived at the scene, he told dispatch his location and observation that a school bus was turned over on its side and numerous victims were at the scene. Anderson observed that the bus was full of children who were dressed to depict accident victims. He requested that dispatch send paramedics and ambulances. Anderson retrieved his medical bag from his squad car and headed toward the bus.

Fedke observed a Chaska Fire Department vehicle arrive at the scene and confronted the occupants. He approached the driver of the fire department vehicle and stated, “Let’s go. Hurry up. Let’s get the kids out.” Fedke stated that he left the fire department vehicle because the occupants were not responding to his prompting.

Fedke then ran to the back of the school bus and arrived at its rear door shortly after Anderson. Fedke is six feet tall and, at the time of the simulation, weighed 190 pounds. As Anderson was attempting to open the back door to the school bus, Fedke initiated contact with Anderson. Fedke placed his hand on Officer Anderson’s back and began pushing Anderson. Anderson stated that he was not familiar with Fedke and had not been informed that anyone would make attempts to physically interfere with official personnel at the scene. Anderson told Fedke to “back up.” Fedke did not back up and continued to push against Anderson.

Anderson pushed Fedke away from him to try to establish space between him and Fedke. Anderson then returned to the back door of the school bus to try to enter, and Fedke immediately began again pushing against Anderson. According to Anderson, it appeared that Fedke’s level of physical aggressiveness was even greater than before. Fedke admitted that he pushed against Anderson to get to the back door of the bus. Fedke admitted that he pushed against Anderson “like an offensive tackle.”

Because Fedke continued to push against him, Anderson decided to place Fedke on the ground through a “controlled takedown.” Anderson used a “leg sweep” to pull Fedke’s legs out from under him and then held onto Fedke so he would go down to the ground in a controlled fall. After the takedown, Anderson did not have any other physical contact with Fedke. The video shows that Anderson never hit, kicked, or struck Fedke. Fedke agreed that he was not kicked and did not receive any bruises during the leg sweep.

Fedke sued appellants, the City of Chas-ka and the Chaska Police Department (the city), alleging that Anderson “willfully and negligently forcibly grabbed [Fedke] by the shoulders and pushed [Fedke] to the ground.” Fedke sought damages for injuries sustained during the simulation. The city brought a motion for summary judgment alleging, among other things, that Fedke’s claim was barred by the doctrine of vicarious official immunity. The district court issued an order denying the city’s motion for summary judgment. The court made no findings of fact or conclusions of law. Fedke failed to file a brief properly, and this appeal proceeds pursuant to Minn. R. Civ.App. P. 142.03.

ISSUE

Is the City of Chaska protected by vicarious official immunity?

ANALYSIS

On appeal from summary judgment, we determine whether the case raises genuine issues of material fact and whether the district court erred in its application of the law. Cummings v. Koehnen, 568 N.W.2d 418, 420 (Minn.1997). The reviewing court must view the evidence in the light most favorable to the party against whom judgment was granted. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn.1993). No genuine issue of material fact exists “[w]here the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party.” DLH Inc. v. Russ, 566 N.W.2d 60, 69 (Minn.1997) (alteration in original) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986)). A genuine issue for trial must be established by substantial evidence. Id. at 70.

The district court denied the city’s motion for summary judgment based on vicarious official immunity. Whether a municipality or its officials are protected by official immunity is a legal question, which appellate courts review de novo. Johnson v. State, 553 N.W.2d 40, 45 (Minn.1996).

As Ben Anderson, the police officer in this case, was not named as a defendant in this action, we first address whether he was entitled to official immunity. See Sletten v. Ramsey County, 675 N.W.2d 291, 300-01 (Minn.2004) (stating that although the state official is not named in the suit, the nature of the official’s conduct determines the applicability of vicarious official immunity). Official immunity protects government officials from suit for discretionary actions taken in the course of their official duties. Janklow v. Minn. Bd. of Examiners for Nursing Home Adm’rs, 552 N.W.2d 711, 715-16 (Minn.1996). “Official immunity is intended to protect public officials from the fear of personal liability that might deter independent action.” Id. at 715 (quotations omitted). “[A] public official charged by law with duties which call for the exercise of his judgment or discretion is not personally liable to an individual for damages unless he is guilty of a willful or malicious wrong.” Elwood v. Rice County, 423 N.W.2d 671, 677 (Minn.1988) (quotations omitted). Whether official immunity is available depends on whether the alleged acts were (1) discretionary or ministerial, and (2) malicious or willful. Davis v. Hennepin County, 559 N.W.2d 117, 122 (Minn.App.1997), review denied (Minn. May 20,1997).

The city argues that Anderson’s actions involved discretionary conduct. Official immunity applies only when an official’s conduct involves the exercise of judgment or discretion. Elwood, 423 N.W.2d at 677. By contrast, ministerial conduct is absolute, certain, and involves the mere execution of a specific duty under designated facts. Wiederholt v. City of Minneapolis, 581 N.W.2d 312, 315 (Minn.1998). Police officers are typically “classified as discretionary officers entitled to [official] immunity.” Johnson v. Morris, 453 N.W.2d 31, 42 (Minn.1990). The City of Chaska points to two unpublished decisions of this court when we held that in simulated/training exercises, the police officers’ conduct was discretionary. See Clingan v. Anoka County, No. CX-02-1049, 2003 WL 139392, at *3, (MinmApp. Jan.21, 2003); Armstrong v. County of Sherburne, No. CO-00-732, 2000 WL 1809075, at *3, (Minn.App. Dec.12, 2000).

In Clingan, a retired police officer was bitten by a dog while participating in a dog and dog handler training exercise. 2003 WL 139392, at *1. The court noted that Deputy Knealing, an active Anoka County Deputy Sheriff participating in the drill, had to determine (1) whether to use a volunteer for the exercise; (2) the type of equipment to use; (3) how to handle the dog; and (4) how to protect the safety of everyone involved in the training exercise. Id. at *3. This court stated that “[a]lthough this accident took place during a training exercise while Knealing and [dog] were neither on duty nor facing an emergency, these factors are not necessary to apply the immunity doctrine.” Id. The court affirmed summary judgment in favor of Anoka County, concluding that because the dog handler was entitled to official immunity, “the county is also entitled to vicarious immunity protection.” Id.

In Armstrong, a girl scout leader was injured while participating in a police demonstration involving a dog. 2000 WL 1809075, at *1. The court found that the deputy had to decide whether to proceed using a volunteer because the person who normally played the role of “agitator” was unavailable. Id. at *2. This court concluded that “the deputys conduct ... required the exercise of his judgment and discretion and is, therefore, entitled to official immunity.” Id. The court affirmed summary judgment in favor of Sherburne County on the basis that the county was entitled to vicarious official immunity. Id. at *3.

The setting, meaning “simulation/training” are virtually identical to our setting, and the logic in Clingan and Armstrong is persuasive. In this case, Carver County, which had not been through a critical school bus accident simulation before, conducted the simulation for the purpose of training area emergency services to respond to critical incident scenarios. For his part, the simulation required Officer Anderson to make decisions about the safest and best way to respond to the critical incident situation. When Anderson was confronted with Fedke, who portrayed (properly) a persistent and frantic parent/grandparent concerned for his child/grandchild, Anderson had to balance Fedke’s emotions with the needs of all the children trapped on the bus. Anderson had to exercise judgment and discretion for the protection of all the children on the bus. Like the police officers’ conduct in both Clingan and Armstrong, we conclude that Anderson’s conduct required judgment and discretion. On this record, even for purposes of summary judgment, this situation easily fits within the scope of activities protected by official immunity.

The city also points out that Anderson’s actions were neither willful nor malicious. Even though a police officer’s actions are discretionary, an officer is not shielded from suit if his actions are willful or malicious. Rico v. State, 472 N.W.2d 100, 106-07 (Minn.1991). A public official commits willful or malicious conduct by “intentionally committing] an act that he or she then has reason to believe is prohibited.” Id. at 107. The facts in this case are undisputed, and the record contains no evidence that Anderson acted with malice. Anderson, as part of his duties as a police officer, was reacting to a (training) emergency situation and, as part of that, he decided to stop Fedke from interfering with his job to open the back of the school bus to retrieve the children. With Fedke’s persistence in playing the part of an emotionally involved grandparent, we cannot say that, on these facts, Anderson acted improperly in any way in getting Fedke to the ground in a “controlled takedown.” As stated previously, Fedke agrees that he was not kicked and did not receive any bruises during the leg sweep that brought him to the ground and under Officer Anderson’s control.

Even viewing the record in the light most favorable to Fedke, the record does not present a substantial factual dispute as to whether Anderson’s conduct (a) involved the exercise of discretion, and (b) was willful and malicious. Anderson is protected by the doctrine of official immunity.

Having concluded that Anderson is entitled to official immunity, we next address whether the city is entitled to vicarious official immunity. Sletten, 675 N.W.2d at 303-05 (discussing the extension of vicarious official immunity to governmental entities after determining whether a government employee has been allowed official immunity). The district court apparently determined that Anderson was not entitled to official immunity and, thus, barred appellants from asserting vicarious official immunity. Official immunity protects public officials acting in their official capacity from suit. Vicarious official immunity protects the governmental entity from suit when “the threat of potential liability [would] unduly inhibit the exercise of discretion required of public officials in the discharge of their duties.” Watson v. Metropolitan Transit Comm’n, 553 N.W.2d 406, 414 (Minn.1996) (quotations omitted). “Vicarious official immunity protects a governmental entity from liability based on the acts of an employee who is entitled to official immunity.” Dokman v. Hennepin County, 637 N.W.2d 286, 297 (Minn.App.2001) (quoting Wiederholt, 581 N.W.2d at 316), review denied (Minn. Feb. 28, 2002).

Anderson exercised discretion and acted without malice when he participated in the simulation, so he was entitled to official immunity. Common sense tells us that the immunity has to extend to his employer. To grant the officer official immunity, but then allow a direct suit against the officer’s employer would inhibit employees from participating in situations, such as the training exercise here, so as not to get in trouble with their employer. See Pletan v. Gaines, 494 N.W.2d 38, 42-43 (Minn.1992) (holding that official immunity extends vicariously to city because police officer’s decision to engage in car chase and to continue chase involves weighing of many factors, and failing to extend immunity may cause police officers to decline to engage in pursuit when pursuit is indicated). Put another way, vicarious liability has to apply in situations when, if vicarious immunity to the employer were not granted, the purpose of official immunity would be defeated. Anderson v. Anoka-Hennepin Indep. Sch. Dist. 11, 678 N.W.2d 651, 664-65 (Minn.2004); Ireland v. Crow’s Nest Yachts, Inc., 552 N.W.2d 269, 272 (Minn.App.l996)Search Term End, review denied (Minn. Sept. 20,1996).

We conclude that the City of Chaska and the Chaska Police Department are protected by vicarious official immunity.

DECISION

The essential facts in this case are undisputed. The police officer exercised discretion when he participated in the simulation and his conduct was not willful or malicious. The police officer’s conduct was protected by official immunity, and, therefore, the city and its police department are entitled to summary judgment based on vicarious official immunity.

Reversed.


author: KAPSNER, Justice.

text:
    2004 ND 169
    SMITH ENTERPRISES, INC., d/b/a D & M Phone Cards, Plaintiff and Appellant v. IN-TOUCH PHONE CARDS, INC., and James Wolf, Defendants and Appellees.
    No. 20040039.
    Supreme Court of North Dakota.
    Aug. 31, 2004.

      Ronald H. McLean (argued) and Brad A. Sinclair (on brief), Serkland Law Firm, Fargo, N.D., for plaintiff and appellant.
    Joseph A. Turman (argued), and Katrina Turman (argued), third-year law «tudent, DeMars & Turman, Fargo, N.D., for defendants and appellees.
   KAPSNER, Justice.

[¶ 1] Smith Enterprises, Inc., doing business as D & M Phone Cards, appealed from an order denying its post-trial motions and from a judgment dismissing its complaint against In-Touch Phone Cards, Inc., and its general manager and co-owner, James Wolf, and awarding In-Touch and Wolf $9,520.23, plus interest and costs, on their counterclaim. We affirm.

I

[¶ 2] In-Touch is in the business of acquiring long distance telephone services from long distance service providers and selling prepaid phone cards for those services. In-Touch sells prepaid phone cards directly to retailers and also produces prepaid phone cards for sale to other companies, who sell those cards to retailers. Dennis Smith is the president and principal officer of Smith Enterprises, an entity that purchases prepaid phone cards from suppliers and sells those cards to retailers.

[¶ 3] In April or May 2000, Smith and Wolf met at a Fargo restaurant to discuss a potential business relationship. Wolf agreed to print some In-Touch phone cards for Smith Enterprises to determine whether there was a viable market for those phone cards. Smith and Wolf subsequently entered into an oral business relationship in which Smith Enterprises bought phone cards from In-Touch for a percentage of the face value of the card, and Smith Enterprises sold those cards to retailers. In-Touch initially developed two logo or custom phone cards for Smith Enterprises. One card, with a windmill on the faceplate, had a two cent per minute charge for long distance services plus a connection fee. The other ’card had a golfer on the faceplate carried a five cent per minute charge with no connection fee. Both cards identified “D <& M Phone Cards” on the faceplate and were available in $5, $10, and $20 denominations.

[¶ 4] In-Touch subsequently developed a “dual” barn card for Smith Enterprises. The dual card had a barn on the faceplate and offered two different rates per minute with different connection fees. The dual barn card also named “D & M Phone Cards” on the faceplate and was available in $5, $10, and $20 denominations. In May 2001, In-Touch permitted Smith Enterprises to return some windmill and golfer cards from Smith Enterprises’ inventory in exchange for dual barn cards. In-Touch also developed a Stop-N-Go card and a Cenex card for Smith Enterprises to sell to those customers.

[¶ 5] In-Touch claimed Smith Enterprises had agreed to exclusively sell In-Touch’s phone cards, and in May 2001, Wolf learned Smith Enterprises was selling other brands of phone cards. Wolf testified Dennis Smith advised him that Smith Enterprises had received a better deal from another supplier and “it was just business.” Dennis Smith testified one of his salespersons informed him that In-Touch had terminated its relationship with Smith Enterprises. In May 2001, In-Touch sent Dennis Smith an undated letter advising Smith that In-Touch would continue to sell Smith Enterprises dual barn cards for the same percentage of the face value of the card with no exchanges and with all sales final and payable by cashiers check on delivery. The letter also indicated In-Touch had incurred expenses for producing 60,000 phone cards for Smith Enterprises. On June 22, 2001, Dennis Smith made a final purchase of phone cards from In-Touch under the terms of that undated letter.

[¶ 6] In-Touch later made one sale of Stop-N-Go phone cards directly to Stop-N-Go. Wolf testified he was attempting to liquidate unsold Stop-N-Go cards that had been produced for Smith Enterprises. In June or July 2001, In-Touch also began doing business directly with a Cenex promotional group, an entity that had been a customer of Smith Enterprises. According to Clark Erickson, a representative of the Cenex promotional group, Erickson contacted In-Touch after Smith Enterprises terminated its relationship with the Ce-nex promotional group.

[¶ 7] Smith Enterprises claimed it had a distributorship agreement with In-Touch, and In-Touch terminated the agreement without notice. Smith Enterprises sued In-Touch and Wolf, alleging they tortiously interfered with Smith Enterprises’ contractual rights, tortiously interfered with its economic advantage, breached the parties’ oral distribution agreement, and breached the parties’ implied contracts. In-Touch counterclaimed for production costs for cards that In-Touch had produced specifically for Smith Enterprises and that In-Touch retained in its inventory. After a bench trial, the court entered judgment dismissing Smith Enterprises’ claims against In-Touch and Wolf and awarding In-Touch and Wolf $9,520.23, plus interest and costs, on their counterclaim. The trial court denied Smith Enterprises’ post-trial motions for a new trial and to alter or amend the judgment.

II

[¶ 8] Smith Enterprises argues the trial court’s findings are clearly erroneous and the court erred in dismissing its complaint against In-Touch and Wolf.

[¶ 9] A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if no evidence exists to support the finding, or if, on the entire record, we are left with a definite and firm conviction a mistake has been made. Hogan v. Hogan, 2003 ND 105, ¶ 6, 665 N.W.2d 672. A trial court’s choice between two permissible views of the weight of the evidence is not clearly erroneous, and simply because we may have viewed the evidence differently does not entitle us to reverse the trial court. Id. (quoting Schmaltz v. Schmaltz, 1998 ND 212, ¶ 6, 586 N.W.2d 852). On appeal, we do not reweigh conflicts in the evidence, see Center Mut. Ins. Co. v. Thompson, 2000 ND 192, ¶ 20, 618 N.W.2d 505, and we give due regard to the opportunity of the trial court to judge the credibility of the witnesses. N.D.R.Civ.P. 52(a).

A

[¶ 10] Smith Enterprises initially claims the trial court’s adoption of In-Touch’s proposed findings of fact and conclusions of law without any changes requires reversal of the court’s decision.

[¶ 11] After trial, the judge asked both parties to prepare proposed findings of fact. The trial court adopted In-Touch’s proposed findings of fact and conclusions of law. The court did not prepare its own findings of fact, and we do not approve as a practice the court’s wholesale adoption of one party’s proposed findings of fact. See Schmidkunz v. Schmidkunz, 529 N.W.2d 857, 858-59 (N.D.1995); Warner v. Johnson, 213 N.W.2d 895, 898-99 (N.D.1973). However, when the court signed In-Touch’s proposed findings, those findings became the court’s findings, and if they adequately explain the basis of the court’s decision, they will be upheld on appeal unless clearly erroneous under N.D.R.Civ.P. 52(a). See McDowell v. McDowell, 2003 ND 174, ¶ 8, 670 N.W.2d 876; Hendrickson v. Hendrickson, 553 N.W.2d 215, 218 (N.D.1996); Schmidkunz, at 858-59. Although we prefer that trial courts prepare their own findings of fact, we reject Smith Enterprises’ argument that the court’s wholesale adoption of In-Touch’s proposed findings of fact, by itself, is reason to reverse the court’s decision.

B

[¶ 12] Smith Enterprises argues the trial court erred in characterizing the relationship between the parties as a series of sales contracts evidenced by invoices. Smith Enterprises argues the evidence demonstrates the parties entered into an oral distributorship agreement, In-Touch terminated the distributorship agreement without notice, and the Uniform Commercial Code provisions for course of dealing and custom and trade usage supplement the terms and conditions of the parties’ agreement. Smith Enterprises argues the parties’ course of dealing and custom and trade usage establish it had been allowed to exchange cards without paying for the costs of production for the returned cards.

[¶ 13] The parties did not enter into a written agreement regarding the terms of their business relationship. However, neither party disputes there was an oral arrangement between them for In-Touch to supply phone cards to Smith Enterprises. A determination of the terms of an oral contract must be made by the trier of fact and will be reversed on appeal only if clearly erroneous. Tallack-son Potato Co., Inc. v. MTK Potato Co., 278 N.W.2d 417, 422 (N.D.1979). In commercial contexts, a written agreement may be explained or supplemented by course of dealing, course of performance, or usage of trade. Campbell Farms v. Wald, 1998 ND 85, ¶ 17, 578 N.W.2d 96. Course of dealing and custom and usage are questions to be determined by the trier of fact. See Id. at ¶ 17, n. 4; North Dakota Pub. Serv. Comm’n v. Central States Grain, Inc., 371 N.W.2d 767, 776 (N.D.1985); Urbana Farmers Union Elevator Co. v. Schock, 351 N.W.2d 88, 92 (N.D.1984).

[¶ 14] Some of the trial court’s findings are a summary of testimony presented at trial on disputed factual issues without an explicit resolution of the factual dispute. A trial court’s recitation or summary of testimony presented at trial does not satisfy the requirement that findings of fact must be stated with sufficient specificity. Estate ofPolda, 349 N.W.2d 11, 13-14 (N.D.1984); Gross v. Sta-Rite Indus., Inc., 322 N.W.2d 679, 682 (N.D.1982); Peterson v. Hart, 278 N.W.2d 133, 136 (N.D.1979). In Gross, at 682, some of a trial court’s findings outlined the evidence presented at trial on both sides of disputed issues of fact. We said findings of fact should be stated with sufficient specificity to afford a clear understanding of the court’s decision, and findings are adequate if we can determine the factual basis for the court’s ultimate decision. Id. at 682. Although the trial court’s findings in this case include some mere recitations of the testimony presented at trial, we are able to ascertain the basis of the court’s decision and the findings are adequate for our review.

[¶ 15] The trial court found In-Touch did not provide Smith Enterprises with a system or plan for selling the phone cards, and after Smith Enterprises purchased the phone cards from In-Touch, Smith Enterprises had no obligation to In-Touch beyond paying for the cards. The court found there was no franchise agreement between the parties and 'Smith Enterprises was not forbidden from selling In-Touch’s phone cards after the termination of their relationship. The court found there was no agreement between the parties beyond a series of individual contracts, evidenced by invoices, for In-Touch to sell and Smith Enterprises to buy the phone cards. The court found In-Touch had promptly remedied any defective phone cards and, on two separate occasions, In-Touch had allowed Smith Enterprises to exchange phone cards of different denominations to level off Smith Enterprises’ stock. The court found Smith Enterprises was free to continue to sell In-Touch’s phone cards with no obligation to In-Touch other than payment, and In-Touch would continue to exchange any defective cards. Contrary to Smith Enterprises’ claims that In-Touch terminated the business relationship with Smith Enterprises, the court’s findings explain that In-Touch’s relationship with Smith Enterprises was not terminated after In-Touch discovered Smith Enterprises was selling other brands of phone cards in May 2001. The court effectively found there was no distributorship agreement between the parties, In-Touch did not breach any business or contractual arrangement between the parties, and In-Touch would continue to sell phone cards to Smith Enterprises for a percentage of the face value of the card but there would be no further exchanges and all sales would be final. The court also found there was an “implied condition precedent” between the parties for Smith Enterprises to pay for the costs of printing custom cards if Smith Enterprises stopped purchasing custom cards from In-Touch and In-Touch retained any of the unsold custom cards in its inventory. While the terminology drafted by In-Touch and adopted by the court is imprecise, the clear import of the finding is a determination that Smith had agreed to pay printing costs for custom cards.

[¶ 16] Although there is some evidence that Smith Enterprises agreed to pay the costs of production for only the first batch of phone cards produced by In-Touch for Smith Enterprises, there is also some evidence that Smith Enterprises was responsible for the costs for all unsold phone cards that In-Touch produced for Smith Enterprises. Wolf testified:

Q. And you’re the person in charge of inventory for logo cards of distributors?
A. Yes.
Q. And you’re the person that kind of decides when to reorder cards and what quantities?
A. Actually I would talk to the distributor about his logo cards. When he thinks we should—
Q. Well, when you talk to this distributor about logo cards and when you think they should be reordered do you sit down and count the cards on hand and tell him what inventory is?
A. Yes.
Q. Do you do that every time you talk to the distributor about logo cards and about reordering?
A. About reordering I would. I would know approximately what we had on stock, in office.
Q. And do you recall specific conversations with Dennis Smith?
A. Yes.
Q. In which you — in which you told him you’re going to reorder and you talked about quantities of reordering?
A. The quantities were always 5,000 minimum. But to reorder he always knew when I was reordering because he was getting low.
Q. You contend you told Dennis Smith that you would tell him I’m reordering cards. My question is: Do you remember ever once, ever one occasion, where you told him here’s the amount of cards I have on hand, here’s what I’m reordering?
A. Every time.
Q. Didn’t discuss paying for any inventory if the relationship ended?
A. I think when we ordered — when we got the logos we discussed that.
Q. What was discussed then?
A. That if you don’t sell them all you pay is for the plastic.
Q. And at that time it was 5,000 cards?
A. Yes.
Q. That was ordered?
A. 5,000 in each denomination.
Q. And there’s 8 denominations?
A. Yes.
Q. Is the conversation at that time was if you don’t sell the 15,000 cards we’re ordering for you you have to pay for the plastic?
A. Pay for the stock that’s left.
Q. And you said pay for the stock?
A. Stock that’s left, plastic.
Q. And the plastic would have cost 15 cents to 25 cents?
A. Yeah, somewhere in that — -in that frame. It depended upon the plastic company we used.
Q. But did you ever have any other conversations with Dennis Smith after subsequent orders that if he didn’t sell—
A. Every time we made a logo card we said that.

[¶ 17] Although there was some evidence to the contrary, Wolfs testimony supports a finding that the terms under which In-Touch agreed to supply phone cards to Smith Enterprises included a requirement for Smith Enterprises to pay for the costs of printing all custom cards if Smith Enterprises quit purchasing the custom cards from In-Touch and In-Touch retained those cards in its inventory. Smith Enterprises’ reliance on any course of dealing and custom and usage is misplaced, because there was no written agreement between the parties and the trial court found the condition for payment of the costs of printing was a term of the parties’ oral business relationship. We do not reweigh conflicts in the evidence, and we give due regard to the opportunity of the trial court to judge the credibility of the witnesses. N.D.R.Civ.P. 52(a). We are not left with a definite and firm conviction the court made a mistake about the terms of the parties’ oral business relationship. We therefore conclude the trial court’s findings on that issue are not clearly erroneous.

C

[¶ 18] Smith Enterprises argues the trial court erred in failing to find In-Touch wrongfully interfered with Smith Enterprises’ business relationship with Stop -N~ Go, the Cenex buying group, and other customers. Smith Enterprises argues In-Touch sold cards directly to Stop-N-Go and to the Cenex group after In-Touch terminated its relationship with Smith Enterprises. Smith Enterprises argues In-Touch made representations to those customers that Smith Enterprises was selling Florida cards that were no good and were frequently involved in bankruptcy proceedings, and that Smith Enterprises would be out of business in six months.

[¶ 19] In Trade ’N Post, L.L.C. v. World Duty Free Americas, Inc., 2001 ND 116, ¶ 36, 628 N.W.2d 707, we said:

[I]n order to prevail on a claim for unlawful interference with business, a plaintiff must prove the following essential elements: (1) the existence of a valid business relationship or expectancy; (2) knowledge by the interferer of the relationship or expectancy; (3) an independently tortious or otherwise unlawful act of interference by the interferer; (4) proof that the interference caused the harm sustained; and (5) actual damages to the party whose relationship or expectancy was disrupted.

[¶ 20] In dismissing Smith Enterprises’ claims for unlawful interference with business, the trial court found:

Smith has alleged that Wolfs statements to his customers is actionable. Wolf made statements to customers that Smith’s calling cards were inferior to Wolfs and/or Smith’s calling cards would be out of business in 6 months. In this case, Wolf testified that he was simply stating his opinion when he was asked by his various customers about the quality of Smith’s cards. Wolfs statements about Smith’s cards should be considered “puffing.” Puffing is not actionable under the tort of interference with a business relationship. See Speakers of Sport, Inc. v. ProServ, Inc., 178 F.3d 862 (7th Cir.1999). No witness testified that they relied on the statements to Smith’s detriment.
F. Additionally, in order to satisfy the fourth element, there must be proof the interference caused the harm sustained. In other words, but for the actions of Wolf, Smith would have obtained the actual economic benefit. Evidence in this case was to the contrary.
G. There is no testimony that In-Touch’s sale to Stop-N-Go was a result of any tort[i]ous conduct on the part of In-Touch.
H. Clark Erickson and Betty Wet-stein testified that nothing that Wolf said with regard to Smith’s products had any influence on Cenex promotional group’s decision to purchase products from In-Touch.
I. Insofar as any claim for lost sales to Cenex corporate is concerned, there is no evidence to show that Cenex corporate would have contracted with Smith. There is no competent evidence to show that Wolf or In-Touch committed any actions which resulted in the Cenex corporate contract for phone cards going to Qwest as opposed to Smith.
J. The contacts which In-Touch or any of its representatives made with Smith’s salespersons did not cause any sales person to leave Smith’s employment or otherwise stop selling Smith’s products. As a result, there is no proof that any of the statements made to the salespersons or independent sales agents caused any harm.

[¶ 21] There was evidence that the reason Smith Enterprises no longer sold phone cards to Stop-N-Go and the Cenex group was unrelated to In-Touch’s conduct. After a review of the evidence presented at trial, we are not left with a definite and firm conviction the court made a mistake in finding In-Touch’s actions did not cause harm to Smith Enterprises. We therefore conclude the court’s findings on the tortious interference claim are not clearly erroneous, and the court did not err in dismissing that claim.

Ill

[¶ 22] Smith Enterprises argues the trial court erred in failing to grant it a new trial and in failing to alter or amend the judgment, because the evidence was insufficient to justify the findings of fact and conclusions of law. We review these issues under the abuse-of-discretion standard. See First Western Bank & Trust v. First Lutheran Church, 2003 ND 21, ¶ 15, 656 N.W.2d 726; Sollin v. Wangler, 2001 ND 96, ¶ 8, 627 N.W.2d 159. In denying Smith Enterprises’ post-trial motions, the trial court acknowledged the parties had presented two different versions of their business relationship. The court concluded the manifest weight of the evidence was more than sufficient to support the court’s findings, and that evidence indicated the parties’ business relationship was a series of individual contracts. The court also said Smith Enterprises had failed to prove there was a franchise relationship, tortious interference with a business relationship, misappropriation of trade secrets, or breach of contract. We have concluded the trial court’s findings are not clearly erroneous, and we also conclude the court did not abuse its discretion in denying Smith Enterprises’ post-trial motions.

IV

[¶ 23] We affirm the judgment and the post-trial orders.

[¶ 24] GERALD W. VANDE WALLE, C.J., MARY MUEHLEN MARING, WILLIAM A. NEUMANN, and DALE V. SANDSTROM, JJ., concur.