author: PETERSON, Judge.

text:
    WELLS FARGO HOME MORTGAGE, INC., Appellant, v. Michelle R. NEWTON, a/k/a Michelle R. Newton Witkowski, Respondent, John Doe et al., Defendants, Theodore Witkowski, Respondent.
    No. C1-02-16.
    Court of Appeals of Minnesota.
    July 9, 2002.

      Gary B. Bodelson, Minneapolis, for appellant.

      Michelle R. Newton, Minneapolis, pro se respondent.
    Christopher E. Brevik, Brevik & Associates, Maple Grove, for respondent Theodore Witkowski.
    Considered and decided by SCHUMACHER, Judge, PETERSON, Judge, and PORITSKY, Judge.

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

   OPINION

PETERSON, Judge.

Appellant Wells Fargo Home Mortgage, Inc., challenges the district court’s grant of summary judgment in favor of respondent Theodore Witkowski. Wells Fargo contends that (1) the district court erroneously determined that a mortgage executed by respondent Michelle R. Newton is not a purchase-money mortgage; (2) under Minn.Stat. § 519.02 (1998), the spousal-signature requirement in Minn.Stat. § 507.02 (1998) does not apply to the mortgage because Newton owned the mortgaged property when she married Witkowski; and (3) the district court erroneously dismissed its claims against Newton regarding money owed under her promissory note. We affirm in part, as modified, and reverse and remand in part.

FACTS

On July 27, 1988, Newton, then a single person, entered into a contract for deed with Elmer and Ruth Haase to purchase a house in Coon Rapids. On May 18, 1990, Newton and Witkowski were married. Following the marriage, the couple lived in the house in Coon Rapids. In February 1999, the couple separated, and Witkowski moved out of the house. Soon after, Wit-kowski petitioned to dissolve the marriage.

In October 1999, while the dissolution proceeding was pending, Newton borrowed $116,600 from First State Mortgage Corporation and executed a promissory note and a mortgage for the Coon Rapids property to secure the note. The mortgage did not name Witkowski as a mortgagor, and Witkowski did not sign the mortgage. The mortgage was assigned to Norwest Mortgage Inc., which is now known as Wells Fargo Home Mortgage, Inc. Newton used $55,034.74 of the amount borrowed to pay off the contract for deed, and the remaining amount borrowed ($61,-565.26) to pay closing costs and personal expenses.

Newton failed to make mortgage payments after April 2000, and in November 2000, Wells Fargo filed suit against Newton, Witkowski, and others, seeking: (1) a declaration that the mortgage is a purchase-money mortgage superior to the claim or right of any defendant; (2) a judgment against Newton for the whole sum secured by the mortgage, plus interest and costs and disbursements, including attorney fees; (3) a decree of foreclosure directing the sale of the property; (4) a declaration that the defendants’ interests in the property are inferior to Wells Fargo’s lien, and the defendants are barred from any right, title, or interest in the property, except the right of redemption; and (5) a deficiency judgment against Newton, if the sale proceeds are insufficient to satisfy the judgment.

Wells Fargo and Witkowski each moved for summary judgment. Newton appeared at the hearing on the motion, but she was not allowed to participate because she had not filed an answer to Wells Fargo’s complaint or paid a filing fee. The district court granted Witkowski’s motion for summary judgment, denied Wells Fargo’s motion for summary judgment, and dismissed Wells Fargo’s claims against Witkowski.

Wells Fargo appealed. This court dismissed the appeal because the district court had dismissed Wells Fargo’s claims against Witkowski but had not dismissed Wells Fargo’s claims against Newton, and, therefore, the judgment was a nonap-pealable, partial judgment. The district court issued a new order that, in addition to the relief granted in the earlier judgment, dismissed Wells Fargo’s claims against Newton. Judgment was entered, and Wells Fargo appealed again.

ISSUES

1. Is the mortgage Newton executed exempt from the spousal-signature requirement in Minn.Stat. § 507.02 (1998) because it is a purchase-money mortgage?

2. Under MinmStat. § 519.02 (1998), is the mortgage Newton executed valid without Witkowsld’s signature because Newton owned the mortgaged property when she married Witkowski?

3. Did the district court err in dismissing Wells Fargo’s claims against Newton arising under the promissory note?

ANALYSIS
A motion for summary judgment shall be granted when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that either party is entitled to a judgment as a matter of law.

Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn.1993).

On an appeal from summary judgment, we ask two questions: (1) whether there are any genuine issues of material fact and (2) whether the lower courts erred in their application of the law.

State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990) (citation omitted). We “must view the evidence in the light most favorable to the party against whom judgment was granted.” Fabio, 504 N.W.2d at 761.

When the district court grants a summary judgment based on its application of statutory language to the undisputed facts, * * * its conclusion is one of law and our review is de novo.

Lefto v. Hoggsbreath Enters., Inc., 581 N.W.2d 855, 856 (Minn.1998).

1. Purchase-Money Mortgage

When interpreting a statute, we first look to see whether the statute’s language, on its face, is clear or ambiguous. A statute is only ambiguous when the language therein is subject to more than one reasonable interpretation.

American Family Ins. Group v. Schroedl, 616 N.W.2d 273, 277 (Minn.2000) (citations and quotations omitted).

Minn.Stat. § 507.02 (1998) states, in part:

If the owner is married, no conveyance of the homestead, except a mortgage for purchase money unpaid thereon, * * * shall be valid without the signatures of both spouses. A spouse’s signature may be made by the spouse’s duly appointed attorney-in-fact.
A husband and wife, by their joint deed, may convey the real estate of either. A spouse, by separate deed, may convey any real estate owned by that spouse, except the homestead, subject to the rights of the other spouse therein; and either spouse may, by separate conveyance, relinquish all rights in the real estate so conveyed by the other spouse.

Wells Fargo argues that Minn.Stat. § 507.02 does not apply to the mortgage Newton signed because the loan proceeds obtained with the mortgage were partly applied to the purchase price of the house, and, therefore, the mortgage is a purchase-money mortgage. The district court determined that because the transaction in which the mortgage was created was a refinancing of a prior obligation, and more than half of the money borrowed in the transaction was used to pay personal expenses rather than the purchase price of the house, the mortgage is not a purchase-money mortgage, and Minn.Stat. § 507.02 applies to the mortgage. Because the language of Minn.Stat. § 507.02 is subject to either interpretation, the statute is ambiguous, and we must determine whether Minn.Stat. § 507.02 applies to a mortgage when funds obtained with the mortgage are used partly to refinance a contract for deed and partly to pay personal expenses.

It has long been the law in Minnesota that a purchase-money mortgage is superior to any other party’s interest in the property. See Stewart v. Smith, 36 Minn. 82, 83, 30 N.W. 430, 431 (1886) (purchase-money mortgage takes precedence over any other claim or lien arising through the mortgagor). Consistent with this principle, Minn.Stat. § 507.02 does not apply when a mortgage on a homestead is “a mortgage for purchase money unpaid.” But the statute does not define “a mortgage for purchase money unpaid.”

A purchase-money mortgage is one given to secure unpaid purchase money. O’Halloran v. Marriage, 167 Minn. 443, 445, 209 N.W. 271, 272 (1926). In other words, financing the purchase of a parcel of land by granting a mortgage on the land as security creates a purchase-money mortgage. Marin v. Knox, 117 Minn. 428, 430-32, 136 N.W. 15, 16-17 (1912).

When a third party furnishes a part of the purchase price and takes a mortgage therefor from the vendee, the mortgage may be given effect as a purchase-money mortgage. It is unnecessary that the deed and the mortgage should be executed at the same moment, or even on the same day, provided the execution of the two instruments constitutes part of one continuous transaction and was so intended.

Olson v. Olson, 203 Minn. 199, 202, 280 N.W. 640, 641 (1938) (citations and quotations omitted).

The mortgage Newton signed meets this definition of a purchase-money mortgage. A third party (Wells Fargo’s predecessor) furnished a part of the purchase price for Newton’s house (the amount Newton used to pay off the contract for deed). When Newton paid off the contract for deed, she received a deed for the property, and the third party took a mortgage from her to secure its loan. The deed and the mortgage were intended to be part of one transaction to refinance Newton’s house.

Under Marin v. Knox, a mortgage used to refinance a contract for deed can be a purchase-money mortgage. In Marin, E.R. Keplinger, the vendor of real property, gave the vendee, Austin C. Knox, “a contract agreeing to convey for $3,200.” Marin, 117 Minn. at 429-30, 136 N.W. at 16. The vendee took possession, but five years later, was unable to make payments as agreed. Id. at 430, 136 N.W. at 16. To pay the remaining $2,116.40 due under the contract for deed, the vendee borrowed $1,500 and gave two separate mortgages to secure the loan. Id. The entire amount borrowed was paid to the vendor as part of the purchase price. Id. at 431, 136 N.W. at 16. The vendee also gave the vendor a mortgage for $616.40 to secure the remaining balance due. Id. at 430, 136 N.W. at 16. When the vendee’s judgment creditor obtained title to the property upon an execution sale under a judgment against the vendee, the issue arose whether the mortgages were purchase-money mortgages that had priority over the judgment. Id. at 430-31, 136 N.W. at 16. The supreme court stated:

[The judgment creditor] earnestly contends that, because the contract for purchase of the land was made in 1902, there could be no agreement to take back a purchase-money mortgage in 1908; the written contract containing no provision for a mortgage. We fail to see the force of this position. In Laidley v. Aikin, 80 Iowa, 112, 45 N.W. 384, 20 Am. St. Rep. 408, the contract to convey had been given 3 years before the purchase-money mortgage was made. Knox had failed to make the payments stipulated in the contract, and Keplinger, by giving the 30-day notice required, was in a position to terminate all rights under the contract. In this situation, had Keplinger given a deed upon receiving back a mortgage from Knox for the amount due and unpaid, could it for a moment be claimed that the mortgage was not entitled to be considered as a purchase-money mortgage? When [the judgment creditor] obtained his judgment, it did not become a lien on the unpaid amount of the purchase price, and he should not be heard to object to whatever agreement the parties mutually agreed upon to secure the same, as long as the equity of Knox in the land was not diminished.
We conclude, from the examination of the testimony and admitted facts, that the court was fully warranted in finding that at the time the mortgages were delivered $2,116.40 was due Keplinger upon the purchase price of the land; that the execution and delivery of the deed by Keplinger to Knox, and the mortgages from the latter to [the parties who made the $1,500 loan] and Keplinger, together with the payment to Kep-linger of the proceeds of the $1,500 loan upon the unpaid purchase price of the land, constituted but one transaction; that the intent and agreement of all said parties was that the title to the land should vest in Knox, subject to the purchase-money mortgage liens of said three mortgages; and hence that said three mortgages in fact do represent and secure the payment of the purchase price of the land, and no other amount whatsoever.

Id. at 432-33, 136 N.W. at 17.

As in the mortgage transaction in Marin v. Knox, several years after entering into a contract for deed, Newton obtained a loan to refinance the contract for deed and gave the lender a mortgage to secure repayment of the loan. The fact that Knox gave the mortgages to refinance a prior obligation did not prevent the mortgages from being purchase-money mortgages; under Marin v. Knox, if Newton had used the loan proceeds only to refinance her contract for deed, the mortgage would be a purchase-money mortgage. But unlike the transaction in Marin v. Knox, Newton did not use every dollar obtained by means of her mortgage to pay the balance due on her contract for deed. Instead,' she used more than half of the amount she obtained to pay closing costs and personal expenses. Consequently, unlike the mortgages in Marin v. Knox, the mortgage Newton signed does not “represent and secure the payment of the purchase price of the land, and no other amount whatsoever.”

Because Newton used loan proceeds to pay expenses other than the balance due on her contract for deed, it is not completely accurate to say that the mortgage she signed is a mortgage for purchase money unpaid on her homestead. But because Newton used almost half of the loan proceeds to pay the balance due on her contract for deed, it is also not completely accurate to say that the mortgage is not a mortgage for purchase money unpaid. However, Newton signed only one mortgage, and Minn.Stat. § 507.02 does not indicate whether the exception for “a mortgage for purchase money unpaid” ceases to apply if funds obtained by means of the mortgage are used to pay both purchase money and other expenses. Faced with this dilemma, the district court concluded that the mortgage is not a purchase-money mortgage, and, therefore, under Minn.Stat. § 507.02, the mortgage is invalid because it was not signed by both Newton and Witkowski.

Because the district court concluded that the mortgage is invalid, it dismissed all of Wells Fargo's claims. If affirmed, this would mean that Wells Fargo could not enforce Newton’s mortgage to recover any of the money Newton borrowed even though Newton applied $55,034.74 of the borrowed money to the purchase price of her house. Although we recognize that the district court’s interpretation of Minn. Stat. § 507.02 is a reasonable interpretation of the statutory language, and we see merit in an interpretation that requires a determination that a single conveyance either is, or is not, a purchase-money mortgage, we conclude that the harsh result produced by the district court’s interpretation of Minn.Stat. § 507.02 is not consistent with the policy objective of the statute.

The supreme court has explained that Minn.Stat. § 507.02 “evidences the clear and unambiguous legislative policy of ensuring a secure homestead for families.” Dvorak v. Maring, 285 N.W.2d 675, 677-78 (Minn.1979). The basic policy objective of the statute is “protecting the alienation of the homestead without the willing signatures of both spouses.” Id. at 678.

In order to insure a stable and independent citizenry and thereby promote the public welfare, it has always been the policy of the law to protect with jealous zeal the homestead right of the citizen and his wife and minor children. This right is based on the fundamental conception that the home should be a citadel of security against the misfortunes and uncertainties of life. Our statutes have been carefully designed to effectuate this policy and to preserve the homestead to the family even at the sacrifice of just demands.

Holden v. Farwell, Ozmun, Kirk & Co., 223 Minn. 550, 558-59, 27 N.W.2d 641, 646 (1947) (citations omitted).

But the legislative policy of preserving the homestead against even just demands does not extend to preserving the homestead against demands for unpaid purchase money. Craig v. Baumgartner, 191 Minn. 42, 254 N.W. 440 (1934), which involved circumstances somewhat similar to the facts before us, illustrates the limits of legislative policy that the supreme court has recognized when applying the law to protect the homestead right of a citizen who did not join in his spouse’s attempt to convey an interest in their homestead.

In Craig, Catherine Craig entered into a contract for deed in 1909 to purchase a house for $5,500. Id. at 43, 254 N.W. at 440. Craig and her husband occupied the house as their homestead. Id. In 1916, while still owing $2,200, Craig failed to make the payments under the contract for deed. Id. Also in 1916, entirely apart from the contract for deed, Craig’s husband became indebted to the contraet-for-deed vendor in the amount of $2,500. Id. Craig surrendered the original contract to the vendor and entered into a new contract in which the vendor agreed to convey the property upon payment of $4,700, which represented the unpaid balance of the 1909 contract and the husband’s separate debt to the vendor. Id. The husband signed the new contract only as a witness. Id. Craig paid a substantial amount under the 1916 contract and then went into default. Id.

In 1932, after the contract-for-deed vendor died, the representatives of his estate served the proper statutory notice to cancel the 1916 contract. Id., 254 N.W. at 441. Craig brought suit to enjoin the cancellation on the grounds that the 1916 contract was an equitable mortgage. Id. The trial court made findings and ordered judgment for the estate. Id. at 43-44, 254 N.W. at 441. Relying on the predecessor to Minn.Stat. § 507.02, which was not substantively different from the current statute, the supreme court reversed and ordered a new trial.

The rationale of the supreme court’s decision was that when Craig surrendered the 1909 contract for deed, she did so by merely handing over the contract without any accompanying written instrument. Id. at 44, 254 N.W. at 441. But at the time she did so, she had paid more than one half of the purchase price for the property and had an equitable interest in the property to the extent of payments made. Id. Therefore, under the statute, if the property was a homestead, Craig could not alienate this equitable interest by surrendering the contract without the signature of her husband. Id. Consequently, because the record did not show that there was ever any attempt to cancel the 1909 contract according to the statutory cancellation procedure, the 1909 contract remained in force, and the 1916 contract was of no effect. Id. The supreme court explained that the execution of the 1916 contract represented a misconceived notion of the status of the parties. Where a person holds a contract for deed which has not been canceled or validly surrendered, the taking of another contract on the same land is of no effect. The argument that the second contract is a mortgage when the first one is still in force defeats itself.

Id.

But because the case had been tried on the theory that the 1909 contract had been validly sin-rendered, and, therefore, the defendants had no reason to show at trial that the surrender did not violate the statutory predecessor of Minn.Stat. § 507.02, the supreme court ordered a new trial to give the defendants an opportunity to do so. The court explained:

If defendants can show a valid cancellation of the 1909 contract, that the property was not plaintiffs homestead, or that there was a written instrument signed by plaintiffs husband accompanying the surrender of the 1909 contract, they should be given a chance so to do. In the event that they are not able so to do, defendants should recover nothing, and, upon payment of the balance due under the 1909 contract, if any, plaintiffs should be entitled to the land in fee. Even if defendants are able to show a valid surrender of the 1909 contract and if it is found that the 1916 contract is a mortgage, we do not think that under our statute it can be a mortgage for more than the amount of the unpaid purchase price on the 1909 contract.

Id. at 48, 254 N.W. at 443 (emphasis added).

In other words, even if the representatives of the vendor’s estate could show that the surrender of the 1909 contract for deed was valid because it did not violate the statutory requirement that both spouses sign a conveyance of a homestead, the 1916 contract, which was not signed by Craig’s husband, could convey a mortgage interest only in the unpaid purchase price under the 1909 contract. Any mortgage interest created by the 1916 contract could not apply to the husband’s $2,500 debt that the 1916 contract was also intended to secure.

This is precisely the situation presented in the present case. Newton’s mortgage is for an amount that includes the unpaid purchase price on her contract for deed and other debts unrelated to the purchase of her homestead. Under the supreme court’s statement in Craig, the mortgage cannot be for. an amount greater than the unpaid balance of the contract for deed because the mortgage was not signed by both Newton and Witkowski. But this limitation on the amount of the mortgage does not invalidate the entire mortgage. There can be a valid mortgage in the amount of the unpaid purchase price under Newton’s contract for deed.

We conclude that under Minn.Stat. § 507.02, to the extent that the mortgage Newton signed secures amounts other than the unpaid purchase price under Newton’s contract for deed, the mortgage is invalid. But to the extent that the mortgage secures the $55,034.74 unpaid purchase price under the contract for deed, it is a mortgage for purchase money unpaid on the homestead. Therefore, the spousal-signature requirement in Minn. Stat. § 507.02 does not apply to that portion of the mortgage, and the mortgage is a valid mortgage for $55,034.74 even though it was not signed by Wikowski.

2. The Married Woman’s Act

Wells Fargo argues that because Newton entered into the contract for deed and acquired an interest in the property when she was single, she had a right under Minn.Stat. § 519.02 to mortgage the property free from Witkowski’s control. 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).

Minn.Stat. § 519.02 (1998) states:

All property, real, personal, and mixed, and all choses in action, owned by any woman at the time of her marriage, shall continue to be her separate property, notwithstanding such marriage; and any married woman, during coverture, may receive, acquire, and enjoy property of every description, and the rents, issues, and profits thereof, and all avails of her contracts and industry, free from the control of her husband, and from any liability on account of his debts, as fully as if she were unmarried.

Minn.Stat. § 519.02 was originally enacted to abolish the common-law concept of legal unity of husband and wife. Gillespie v. Gillespie, 64 Minn. 381, 383, 67 N.W. 206, 207 (1896). The legal-unity concept deprived a married woman of a separate legal existence and the right to a legal estate in her own property. Id. In enacting the statute, the legislature sought to eliminate the disabilities concomitant to being a married woman by, among other things, placing married women on an equal footing with their husbands “in respect to the management and control of [their] separate property.” Drake v. Drake, 145 Minn. 388, 390, 177 N.W. 624, 624 (1920) (emphasis added), overruled on other grounds by Beaudette v. Frana, 285 Minn. 366, 373 n. 10, 173 N.W.2d 416, 420 n. 10 (1969).

“By its terms, the statute clearly applies to property a wife acquires separately from her husband before the marriage.” Abrahamson v. Abrahamson, 613 N.W.2d 418, 422 (Minn.App.2000). The statute also applies to property a married woman acquires on her individual credit during the marriage. Hoover v. Carver, 135 Minn. 105, 108, 160 N.W. 249, 250-51 (1916). The statute, however, does not apply to property that a husband and wife acquire jointly during the marriage. Abrahamson, 613 N.W.2d at 422.

Because Newton acquired an interest in the property through a contract for deed before she was married, it appears that Minn.Stat. § 519.02 applies to this interest. But because Newton and Witkowski used the property as them homestead, Newton’s right under Minn.Stat. § 519.02 to manage the property free from the control of her husband conflicts with the restriction in Minn.Stat. § 507.02 that prevents her from conveying the homestead without her husband’s signature.

When a general provision in a law is in conflict with a special provision in the same or another law, the two shall be construed, if possible, so that effect may, be given to both. If the conflict between the two provisions be irreconcilable, the special provision shall prevail and shall be construed as an exception to the general provision, unless the general provision shall be enacted at a later session and it shall be the manifest intention of the legislature that such general provision shall prevail.

Minn.Stat. § 645.26, subd. 1 (2000).

Minn.Stat. § 519.02 applies to all property owned by a woman at the time of her marriage, and Minn.Stat. § 507.02 applies only to real property used by a married person as a homestead. Therefore, Minn. Stat. § 519.02 is a general provision in a law that applies to all property, and it conflicts with a special provision in Minn. Stat. § 507.02 that applies only to homestead property. Because Newton’s right under Minn.Stat. § 519.02 to manage her property free from the control of her husband cannot be reconciled with the restriction in Minn.Stat. § 507.02 that prevents her from conveying the homestead without her husband’s signature, the special provision in Minn.Stat. § 507.02 prevails and is an exception to the general provision in MinmStat. § 519.02.

The language in Minn.Stat. § 507.02 also indicates that it should be construed as an exception to Minn.Stat. § 519.02. Minn. Stat. § 507.02 states:

A spouse, by separate deed, may convey any real estate owned by that spouse, except the homestead, subject to the rights of the other spouse therein.

(Emphasis added.) This language recognizes the right of either spouse to convey that spouse’s real estate, but explicitly states that this right does not include the right to convey the homestead.

This construction of section 519.02 is consistent with the legislative policy of placing married women on an equal footing with their husbands in respect to the management and control of their separate property. Under this construction, neither a married woman nor a married man who owns property at the time of the marriage and uses that property as a homestead during the marriage can mortgage the property without regard to their spouse’s homestead rights.

3. Wells Fargo’s Claims Against Newton

Wells Fargo argues that the district court erred by dismissing its claims against Newton based on the promissory note that she signed at the same time as she signed the mortgage. In the memorandum that accompanied the summary judgment, the district court stated:

[Wells Fargo] sued both parties claiming this matter involved a purchase money mortgage. [Wells Fargo] did not plead any alternative theories of recovery against either defendant. Since this court determines that the transaction is a refinancing, this action is dismissed as to both respondents.

Minn. R. Civ. P. 8.01 states:

A pleading which sets forth a claim for relief * * ⅜ shall contain a short and plain statement of the claim showing that the pleader is entitled to relief and a demand for judgment for the relief sought; if a recovery of money is demanded, the amount shall be stated. Relief in the alternative or of several different types may be demanded.

The purpose of the complaint is to advise the defendant as to the nature of the plaintiffs claim. Willison v. N. Pac. Ry., 111 Minn. 370, 373, 127 N.W. 4, 5 (1910). In determining whether a complaint states a claim, the test is whether the facts alleged, liberally construed, entitled plaintiff to any relief, either legal or equitable. Lucas v. Medical Arts Bldg. Co., 207 Minn. 380, 383, 291 N.W. 892, 894 (1940).

In its complaint, Wells Fargo alleged:

That said Defendant Michelle R. Newton aka Michelle R. Newton-Witkowski has failed, neglected and refused to pay the installments upon said Note and Mortgage which became due on May 1, 2000 and on the first day of each and every month since that date. That because of the default Plaintiff, by virtue of the acceleration clause contained in said Mortgage does hereby elect and declare the total of principal and interest due and payable immediately. That there is due and owing upon said Mortgage the sum of One Hundred Sixteen Thousand Three Hundred Eighty Five and 95/100 ($116,385.95) Dollars together with interest from April 1, 2000 at the mortgage rate.

Wells Fargo’s complaint also included the following request:

That Plaintiff have judgment against the Defendant Michelle R. Newton aka Michelle R. Newton-Witkowski for the sum of $116,385.95 plus interest, from and after April 1, 2000 at the note rate, costs and disbursements, including attorneys’ fees as allowed by law in such an amount as the Court shall determine.

This language satisfies the requirements of rule 8.01. It is a short and plain statement of Wells Fargo’s claim that it is entitled to a judgment against Newton for money owed under the promissory note, and it demands recovery of a specific amount of money. The language also advised Newton as to the nature of the claims against her. Therefore, we reverse the district court’s dismissal of Wells Fargo’s claim against Newton based on the promissory note that she signed.

DECISION

Because $55,034.74 of the amount Newton obtained by means of the mortgage on her homestead was applied to the purchase price of the homestead, the mortgage is a valid mortgage for purchase money unpaid in that amount even though Witkowski did not sign the mortgage. But because Wit-kowski did not sign the mortgage, the mortgage is not valid for any amount greater than $55,034.74. Newton did not have a right under Minn.Stat. § 519.02 to convey the homestead without Witkowski’s signature. Wells Fargo’s complaint adequately stated a claim against Newton for money owed under the promissory note. The district court’s determination that the mortgage Newton signed is not valid without Witkowski’s signature is affirmed to the extent that the mortgage secures any amount greater than $55,034.74. The district court’s dismissal of Wells Fargo’s claim against Newton for money owed under the promissory note is reversed and remanded.

Affirmed in part, as modified, reversed and remanded in part.

      . 2 Mason Minn. St.1927, § 8340, the statute cited by the supreme court, stated:
      But if the owner be married, no mortgage of the homestead, except for purchase money unpaid thereon, nor any sale or other alienation thereof, shall be valid without the signatures of both husband and wife.

      . We recognize that this statement in Craig is dicta. But we find the statement lo be a persuasive explanation of the meaning of an ambiguous statute because it was made almost 70 years ago, and during the intervening period, Minn.Stat. § 507.02 has not been substantively changed. Cf. In re Estate of Bush, 302 Minn. 188, 207, 224 N.W.2d 489, 501 (1974) (stating that supreme court dicta is entitled to "considerable weight” if it contains "an expression of the opinion of the court”).


source: Caselaw Access Project

author: WILLIS, Judge.

license: Public Domain

text:
    STATE of Minnesota, Appellant, v. Troy Alan MEYER, Respondent.
    No. CX-02-1.
    Court of Appeals of Minnesota.
    July 9, 2002.

      Mike Hatch, Attorney General, Steven L. Schleicher, Assistant Attorney General, St. Paul, MN, and Patrick A. Oman, Mower County Attorney, Austin, MN, for appellant.
    John M. Stuart, State Public Defender, Joseph Margulies, Special Assistant Public Defender, Margulies & Richman, Minneapolis, MN, for respondent.
    Considered and decided by SHUMAKER, Presiding Judge, WILLIS, Judge, and FOLEY, Judge.

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

   OPINION

WILLIS, Judge.

The state contends that the district court clearly erred by dismissing a felony-murder charge against respondent in favor of the more specific charge of controlled-substance murder for a death caused by a methamphetamine-laboratory explosion. Because we conclude that the district court did not err, we affirm.

FACTS

In January 2001, materials allegedly used to manufacture methamphetamines exploded in the basement of a house where they were stored. The explosion critically injured an occupant of the house, James Erick Chilson. Witnesses told an officer who was near the scene when the explosion occurred that they saw respondent Troy Alan Meyer flee from the back of the house.

Meyer was charged with first-degree controlled-substance crime, conspiracy to commit controlled-substance crime, and negligent fires. In February 2001, Chilson died from his injuries. The state amended the complaint against Meyer, adding charges of second-degree felony murder, third-degree imminently dangerous-act murder, third-degree controlled-substance murder, and second-degree culpable-negligence manslaughter.

At a pretrial omnibus hearing, Meyer moved the district court to dismiss the charges of murder, manslaughter, and negligent fires for lack of probable cause. In opposition to that motion, the state argued, in part, that the manufacturing of methamphetamines is a proper predicate act for a charge of controlled-substance murder under Minn.Stat. § 609.195(b) (2000), and therefore it had properly-charged Meyer with that offense. In July 2001, the district court denied Meyer’s motion to dismiss.

In August 2001, the supreme court denied review of State v. Craven, in which this court held that if two statutes require proof of identical elements, the specific statute controls over the general statute, unless the legislature manifestly intends otherwise. See State v. Craven, 628 N.W.2d 632 (Minn.App.2001), review denied (Minn. Aug. 15, 2001). On the basis of this court’s decision in Craven, Meyer then moved for the district court to reopen the omnibus hearing and to dismiss the felony-murder charge against him in favor of the more specific charge of controlled-substance murder. The district court granted Meyer’s motion and dismissed the felony-murder charge. The state appeals.

ISSUE

Did the district court err by dismissing a felony-murder charge against respondent in favor of a charge of controlled-substance murder under Minn.Stat. § 609.195(b) (2000) when the alleged offense involved the manufacturing of a controlled substance?

ANALYSIS

In an appeal from a pretrial order, this court will reverse the district court’s dismissal of charges only if the state clearly and unequivocally shows that the district court erred in its judgment and that the error, unless reversed, will critically affect the outcome of the prosecution. State v. Bunde, 556 N.W.2d 917, 918 (Minn.App.1996). The parties do not dispute that the district court’s order critically affects the state’s case. This court must focus, then, on whether the district court clearly and unequivocally erred in its ruling.

The district court based its ruling on its construction of Minn.Stat. § 609.195(b) (2000). Statutory construction is a question of law, which this court reviews de novo. Koes v. Advanced Design, Inc., 636 N.W.2d 352, 358 (Minn.App.2001) (citing Brookfield Trade Ctr., Inc. v. County of Ramsey, 584 N.W.2d 390, 393 (Minn.1998)), review denied (Minn. Feb. 19, 2002).

The state argues that it erred by charging Meyer with controlled-substance murder under Minn.Stat. § 609.195(b) because the statute does not include the manufacture of controlled substances as one of the predicate acts that supports that charge. The state contends that the district court, therefore, clearly erred by construing “selling,” as that word is used in Minn. Stat. § 609.195(b), to include manufacturing controlled substances and by dismissing the felony-murder charge against Meyer in favor of the controlled-substance murder charge. The state makes this argument despite the fact that, in opposition to Meyer’s pre-Craven motion to dismiss for lack of probable cause, it had argued successfully that manufacturing metham-phetamines is a proper predicate act for a charge of controlled-substance murder under Minn.Stat. § 609.195(b).

Minn.Stat. § 609.195(b) provides:

Whoever, without intent to cause death, proximately causes the death of a human being by, directly or indirectly, unlawfully selling, giving away, bartering, delivering, exchanging, distributing, or administering a controlled substance classified in schedule I or II, is guilty of murder in the third degree * * *.

Methamphetamine is a Schedule II controlled substance. Minn.Stat. § 152.02, subd. 3(3)(b) (2000).

Generally speaking, the same set of facts may constitute more than one offense if the statutes so provide. A defendant may then be charged under whichever law or statute [the prosecutor] sees fit, so long as the prosecutor does not discriminate against a particular class of defendants. But when two criminal statutes, one general and one specific, conflict because they have the same elements but differing penalties, the more specific statute governs over the more general statute, unless the legislature manifestly intends for the general statute to control.

Craven, 628 N.W.2d at 634-35 (quotation and citations omitted); see Minn.Stat. § 645.26, subd. 1 (2000) (providing that, generally, specific provisions govern over conflicting general provisions); State v. Carithers, 490 N.W.2d 620, 620 (Minn.1992) (referring to Minn.Stat. § 609.195(b) as “a special felony murder statute”).

The state argues now that because Minn.Stat. § 609.195(b) does not identify manufacturing as a predicate act, felony murder predicated on manufacturing methamphetamines requires the state to prove elements different from those it must prove for controlled-substance murder. Minn.Stat. § 609.19, subd. 2(1) (2000), provides that a person is guilty of second-degree felony murder who

causes the death of a human being, without intent to effect the death of any person, while committing or attempting to commit a felony offense * * *.

Minn.Stat. § 152.021, subd. 2a (2000), defining controlled-substance crime, the proffered predicate for the state’s felony-murder charge against Meyer, provides that “a person is guilty of controlled substance crime in the first degree if the person manufactures any amount of methamphetamine.” First-degree controlled-substance crime is a felony offense. See Minn.Stat. § 152.021, subd. 3(a) (2000) (providing that “[a] person convicted under subdivisions 1 to 2a may be sentenced to imprisonment for not more than 30 years or to payment of a fine of not more than $1,000,000, or both”); Minn.Stat. § 609.02, subd. 2 (2000) (defining “felony” as “a crime for which a sentence of imprisonment for more than one year may be imposed”).

Here, if Minn.Stat. § 609.195(b) is construed to include manufacturing controlled substances as a predicate act, successful prosecution of a felony-murder charge predicated on manufacturing methamphet-amines requires proof of elements identical with the elements of controlled-substance murder, that is, (1) death, (2) causation, and (3) the manufacture of methamphet-amines. The two statutes then conflict only because they prescribe different penalties. See Minn.Stat. § 609.195(b) (providing “imprisonment for not more than 25 years or to payment of a fine of not more than $40,000, or both”). Compare Minn. Stat. § 609.19, subd. 2 (providing “imprisonment for not more than 40 years”).

The controlled-substance statutes define “sell” as “to sell, give away, barter, deliver, exchange, distribute, or dispose of to another, or to manufacture * * *.” Minn. Stat. § 152.01, subd. 15a (2000) (emphasis added). Meyer argues that Minn.Stat. § 609.195(b), a part of the criminal code, incorporates the controlled-substance statutes’ definition of “sell” because the criminal code and the controlled-substance statutes share a common subject matter and a common purpose. But the state argues that the definition of “sell” in Minn.Stat. § 152.01, subd. 15a, is confined to Minn. Stat. ch. 152. See Minn.Stat. § 152.01, subd. 1 (providing that “[u]nless the language or context clearly indicates that a different meaning is intended, the following words, terms, and phrases, for the purposes of this chapter, shall be given the meanings subjoined to them”).

Because Minn.Stat. § 609.195(b) looks to the drug code for the schedules that define controlled substances,- the district court concluded that “[it] is highly unlikely that the Legislature intended the incorporation of certain terms within Chapter 152, while excluding others.” The supreme court has acknowledged that the later-enacted drug code “adopted a definition of ‘sell’ which expressly incorporates each of the various alternative predicate acts” in Minn.Stat. § 609.195(b), except “administering.” Carithers, 490 N.W.2d at 622. The drug code’s definition of “sell” includes manufacture. See Minn.Stat. § 152.01, subd. 15a. Therefore, Carithers implies that Minn. Stat. § 609.195(b) includes manufacturing as a predicate act for a charge of eon-trolled-substance murder under that statute.

A court must construe penal statutes strictly, resolving any doubt in favor of a defendant. State v. Olson, 325 N.W.2d 13, 19 (Minn.1982). But strict construction does not require a court to interpret a statute as narrowly as possible. State v. Zacher, 504 N.W.2d 468, 473 (Minn.1993). As the state itself noted in its memorandum in the district court in opposition to Meyer’s pre-Craven motion to dismiss, among other charges, the eon-trolled-substance murder charge for lack of probable cause,

[t]he legislature’s use of the words “directly or indirectly” before the words describing the specified prohibited con-duct (selling, giving away, etc.) supports a broad reading of the statute.

We conclude that the district court properly construed “selling,” as the word is used in MinmStat. § 609.195(b), to include manufacturing controlled substances. And because Minn.Stat. § 609.195(b) includes manufacturing controlled substances, it requires proof of elements identical with the elements that the state must prove to successfully prosecute a felony-murder charge. Therefore, here, “the felony-murder statute serves no purpose other than to ratchet up the permissible sentence,” and the felony-murder charge against Meyer must be dismissed. See Craven, 628 N.W.2d at 635-36.

DECISION

Because we conclude that “selling,” as that word is used in MinmStat. § 609.195(b) (2000), includes manufacturing controlled substances, the district court did not err by dismissing the felony-murder charge against Meyer in favor of the more specific charge of controlled-substance murder under Minn.Stat. § 609.195(b). We therefore do not reach Meyer’s argument that judicial estoppel bars the state from changing its position on appeal or the state’s argument that manufacturing methamphetamines is a proper predicate for a felony-murder charge.

Affirmed.


author: GORDON W. SHUMAKER, Judge.

text:
    ALPHA SYSTEMS INTEGRATION, INC., Appellant, v. SILICON GRAPHICS, INC., et al., Respondents.
    No. C7-01-2228.
    Court of Appeals of Minnesota.
    July 16, 2002.

      Michael R. Quinlivan, Bethan M. Davies, Cronan Pearson Quinlivan, P.A., Minneapolis, MN, for appellant.
    Ralph V. Mitchell, Lapp, Libra, Thomson, Stoebner & Pusch Chartered, Minneapolis, MN, for respondents.
    Considered and decided by SCHUMACHER, Presiding Judge, PETERSON, Judge, and SHUMAKER, Judge.
   OPINION

GORDON W. SHUMAKER, Judge.

Appellant reseller sued its former supplier for various contract-related claims. The district court dismissed the claims for lack of personal jurisdiction, enforcing the forum-selection clause in the parties’ reseller authorization. Appellant contends that (a) its claims are outside the scope of the clause; (b) litigating its claims in California as required by the clause would be seriously inconvenient; (c) the adhesive nature of the reseller authorization renders enforcement of the clause unreasonable; and (d) enforcement of the clause requiring a second suit in California would contravene public policy favoring a unified resolution of multi-party disputes. We affirm.

FACTS

In June 1998, appellant Apha Systems Integration, Inc., a Minnesota corporation, and respondent Silicon Graphics, Inc. (SGI), a California-based corporation, signed a reseller agreement. This agreement made appellant an authorized, nonexclusive reseller of SGI’s computer products. In December 1998, the parties renewed the agreement, and in February 2000, the parties again renewed, this time by signing a contract entitled “Indirect Reseller Authorization” (Authorization). This contract contained a forum-selection clause providing that

[i]n the event that any dispute or controversy between the parties arises out of or is related to this Authorization, and/or performance or termination thereof, such dispute or controversy shall be subject to the exclusive jurisdiction of the California state courts in and for Santa Clara County, California.

In February 2001, appellant terminated the relationship, and in March 2001, appellant filed suit against SGI and its salesman, respondent Brett Vieillard. The complaint alleged (1) breach of contract; (2) tortious interference with contract; (3) tortious interference with prospective business/contractual obligations; (4) unjust enrichment; (5) trade-secret violations; and (6) common-law misappropriation of confidential information. Appellant claimed that the parties entered into a separate contract (Account Agreement), giving appellant exclusive customers, and that Vieil-lard wrongfully sold SGI’s products to those customers. Respondents moved to dismiss for lack of jurisdiction, and in November 2001, the district court dismissed the complaint without prejudice based on the forum-selection clause.

ISSUES

I. Do appellant’s claims arise out of or relate to the Authorization and its forum-selection clause?

II. Did the district court abuse its discretion in enforcing the forum-selection clause?

ANALYSIS

I.

Whether a forum-selection clause applies is a question of law, which this court reviews de novo. See Northwest Airlines, Inc. v. Friday, 617 N.W.2d 590, 592 (Minn.App.2000) (stating that the existence of personal jurisdiction is a legal question); see also Terra Int’l, Inc. v. Mississippi Chem. Corp., 119 F.3d 688, 692 (8th Cir.1997) (stating that whether a forum-selection clause applies to a plaintiffs claims is a question of law).

Respondents contend that appellant has the burden of producing evidence to show that the clause does not apply because forum-selection clauses are presumptively valid. But appellant only has the burden of proving the clause unreasonable, not proving that it applies. See Hauenstein & Bermeister, Inc. v. Met-Fab, Indus., Inc., 320 N.W.2d 886, 891 (Minn.1982) (“it is incumbent upon the party seeking to escape the contract to show that to be forced to litigate in the contractual forum would be unreasonable”). Generally, the party asserting the applicability of a contract bears the burden of proof. 17B C.J.S. Contracts § 698 (2000).

Appellant argues that this court must assume appellant’s factual allegations in the complaint and affidavits as true when deciding whether the forum-selection clause should apply. See Northwest Airlines, Inc., 617 N.W.2d at 592 (stating that, when reviewing a pretrial order dismissing a claim for lack of personal jurisdiction, this court considers the plaintiffs allegations and evidence supporting jurisdiction to be true and in doubtful cases resolves jurisdictional questions in favor of retaining it). Respondents assert that a motion to dismiss for lack of jurisdiction based on a forum-selection clause is unlike rule 12 or rule 56 motions, where the court must consider the plaintiffs allegations to be true, and respondents also contend that appellant’s Account Agreement is not a valid contract. See Durdahl v. Nat’l Safety Associates, Inc., 988 P.2d 525, 528 (Wyo.1999) (stating that the party challenging enforcement of forum-selection clause must bring forth evidence justifying non-enforcement and that the court will not assume that the pleadings are true). But respondents moved to dismiss pursuant to Minn. R. Civ. P. 12.02(a); and even if we assume appellant’s allegations are true, we conclude that the forum-selection clause applies to appellant’s claims.

Appellant principally argues that its claims arise out of the Account Agreement — not the Authorization — and thus the forum-selection clause should not govern its claims. But the language of the forum-selection clause covers “any dispute or controversy between the parties [that] arises out of or is related to this Authorization, and/or performance or termination thereof.” The Authorization created and defined the parties’ entire business relationship by authorizing appellant to resell SGI’s products. A plain reading of the forum-selection clause leads us to conclude that any dispute arising out of “performance” of the Authorization must include sales-related disputes, such as disputes over customers. In particular, appellant’s claims are based on a right to resell SGI’s products exclusively to certain customers — a right bargained for in the Account Agreement. But this exclusive right could not exist without the basic right to resell SGI’s products as granted in the Authorization. Because appellant’s claims based on the Account Agreement amount to a dispute based on appellant’s right to resell SGI’s products, appellant’s claims arise out of and relate to the Authorization and are thus governed by the forum-selection clause.

Thus, counts one through four of the complaint — breach of the Account Agreement, tortious interference with the Account Agreement, tortious interference with prospective business/contractual obligations, and unjust enrichment — directly arise out of the right to resell SGI’s products. Counts five and six, moreover, allege misappropriation of confidential information and trade-secret violations based on respondents’ alleged wrongful use of the Account Agreement; thus, they too relate to the Authorization. See Terra, 119 F.3d at 695 (stating that, when claims involve the same facts as would give rise to a breach of contract implicating a forum-selection clause, the clause covers such claims). Although appellant did not allege a breach of the Authorization, all of its allegations are premised on the right to resell SGI’s products — a right conferred on appellant by the Authorization and therefore governed by the forum-selection clause.

Appellant contends that the Authorization neither imposed any contractual obligations on respondents nor provided appellant with any rights. Appellant claims that it could never have sued respondents under the Authorization “under any circumstances.” But the Authorization was not illusory because it gave appellant the right to resell SGI’s products. Appellant could have sued SGI if SGI had wrongfully refused to sell its products to appellant during the term of the agreement. Appellant also claims that the Authorization “clearly and unambiguously excludes any claims” that do not rely on it for recovery or that the forum-selection clause is at least ambiguous. A plain reading of the Authorization reveals that the forum-selection clause is not ambiguous and that it governs any dispute arising out of appellant’s right to resell SGI’s products.

II.

Whether to enforce a contract’s forum-selection clause lies within the sound discretion of the district court. Personalized Mktg. Serv., Inc. v. Stotler & Co., 447 N.W.2d 447, 450 (Minn.App.1989), review denied (Minn. Jan. 12, 1990). When a district court has enforced a forum-selection clause, this court will reverse only if the clause is “so unreasonable that its enforcement would be clearly erroneous and against both logic and the facts on record.” Id. at 451.

When parties agree to bring contract disputes in a particular forum, courts generally enforce that agreement unless the party seeking to avoid the contractual forum shows that the agreement is unfair or unreasonable. Hauenstein, 320 N.W.2d at 890 (Minn.1982). A forum-selection clause is unfair or unreasonable if (1) the chosen forum is a “seriously inconvenient” place for trial; (2) the agreement containing the forum-selection clause is a contract of adhesion; or (3) the agreement is “otherwise unreasonable.” Id.

a. Seriously inconvenient forum

The chosen forum is seriously inconvenient if, by litigating there, one party would be “effectively deprived of a meaningful day in court.” Id. (quotation omitted). Location and convenience of witnesses are generally not considered a serious inconvenience. Id.; see also Interfund Corp. v. O’Byrne, 462 N.W.2d 86, 88 (Minn.App.1990) (concluding that deposition testimony can be used without disadvantage if witnesses cannot travel to forum). The enforcement of a forum-selection clause creates a serious inconvenience if it would result in two lawsuits involving similar claims or issues being tried in separate courts. Personalized Mktg., 447 N.W.2d at 452.

Appellant argues that filing suit in California would be unreasonable because this dispute is between Vieillard, a Minnesota resident, and itself, a Minnesota corporation. Appellant also points out that all of the witnesses and evidence are in Minnesota. But appellant could still “have his day in court” in California, and traveling expense does not necessarily render a location seriously inconvenient. Also, appellant may fully plead all of its claims in California, and appellant has not argued that it cannot afford to sue in California. In addition, Vieillard has consented to California’s jurisdiction, so our decision will not cause split litigation.

b. Adhesion contract

An adhesion contract is one that is presented on a take-it-or-leave-it basis and is the product of unequal bargaining power. Hauenstein, 320 N.W.2d at 891. A contract’s inclusion of boilerplate language is only one factor tending to point to an adhesion contract. Id. Other factors include the parties’ sophistication, bargaining-power disparity, opportunity for negotiation, opportunity to obtain the product elsewhere, and the product’s status as a public necessity. Personalized Mktg., 447 N.W.2d at 452. An agreement between parties with business experience is not the product of unequal bargaining power. Interfund, 462 N.W.2d at 89; see also Hauenstein, 320 N.W.2d at 891 (finding that business corporations presumably have personnel able to evaluate corporate agreements).

Appellant argues that the Authorization is “one-sided,” “overweening,” and grants no rights to appellant. Both parties freely signed the Authorization, and appellant exercised its bargaining power by turning down SGI’s initial offer of employment in favor of becoming an independent reseller of SGI’s products. Moreover, appellant had the opportunity to negotiate the terms of the Authorization, and thus it was not the product of unequal bargaining power. In fact, other resellers have negotiated the terms of the Authorization, and appellant alleges that it bargained for the Account Agreement-evidence that there was room to negotiate.

Appellant adds that the usual reasons for enforcing forum-selection clauses— such as freedom of contract, certainty, and convenience — do not exist here because the sole purpose of the clause is to secure tactical litigation advantages for respondents. We disagree. Appellant did not have to sign the Authorization; it could have sold similar products for competitors. Appellant also could have negotiated the Authorization’s terms. And when signing the Authorization, appellant knew that any litigation would take place in Santa Clara County, California. Appellant also compares its 2000 sales of $925,000 with SGI’s 2000 sales of $1 billion. See Nelson v. Master Lease Corp., 759 F.Supp. 1397, 1401-02 (D.Minn.1991) (refusing to enforce a forum-selection clause in a dispute between an employee and an employer where the employer was a large corporation with the ability to protect its interests in any forum). But the employer-employee relationship is different from a business-to-business relationship because corporations are presumptively sophisticated parties, and appellant is a sophisticated party. In fact, appellant has sold computer products for 20 years, including two years as an independent reseller of IBM products. Finally, we note that SGI’s products were neither unique nor a public or essential service.

c. Otherwise unreasonable

A forum-selection clause is also unreasonable if its enforcement would contravene a strong public policy of the forum in which the suit is brought. Interfund, 462 N.W.2d at 89. Judicial economy and the prevention of multiple actions on similar issues are policies that can render a forum-selection clause patently unreasonable. Id.

Appellant argues that enforcing the forum-selection clause would violate Minnesota’s public policy favoring unified resolution of multi-party disputes because Yieillard would remain a defendant in Minnesota. See Personalized Mktg., 447 N.W.2d at 453 (stating that judicial economy and the prevention of multiple actions on similar issues may render a forum-selection clause unreasonable). But Personalized Marketing is distinguishable because that case involved more than 100 parties aligned into three groups raising five cross-claims and counterclaims in addition to the original claim. Id. at 449-50. Enforcing the forum-selection clause in Personalized Marketing would have required the district court to dismiss more than 90 cross-claims, which mostly involved small sums. Id. at 450. Furthermore, because Vieillard has consented to California’s jurisdiction, litigating all claims against all parties in California promotes judicial efficiency.

Appellant argues that a New Jersey case supports its position. See Kubis & Perszyk Assocs., Inc. v. Sun Microsystems, Inc., 146 N.J. 176, 680 A.2d 618, 627 (1996) (refusing to enforce the parties’ forum-selection clause because it violated the state’s franchise act and because such clauses are presumptively invalid absent evidence of separate consideration). New Jersey law has no application here, and appellant has never argued that the Authorization violates Minnesota’s franchise act. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn.1988) (stating that appellate courts will not review matters not argued and considered in the court below).

DECISION

We conclude that the forum-selection clause in the parties’ Authorization governs appellant’s claims based on the Account Agreement because those claims directly relate to appellant’s right to sell SGI’s products — a right conferred on appellant in the Authorization. Moreover, the district court did not abuse its discretion by enforcing the forum-selection clause because the clause is not unfair or unreasonable.

Affirmed.


author: HANSON, Judge.

text:
    MINNESOTA EQUAL ACCESS NETWORK SERVICES, now known as Onvoy, Inc., Appellant, v. BURLINGTON NORTHERN & SANTA FE RAILROAD COMPANY, Defendant, Henkels & McCoy, Inc., Respondent, and Qwest Communications Corp., Defendant and Third-Party Plaintiff, v. Sunbelt Telecommunications Services, Inc., et al., Third-Party Defendants.
    No. C4-02-236.
    Court of Appeals of Minnesota.
    July 16, 2002.

      E. Curtis Roeder, Hanson, Lulic <& Krall, Minneapolis, MN, for appellant.
    Nancy L. Gores, Conley & Borgeson Law Office, St. Paul, MN, for respondents.
    Considered and decided by HANSON, Presiding Judge, ANDERSON, Judge, and HALBROOKS, Judge.
   OPINION

HANSON, Judge.

Respondent excavator cut appellant telephone company’s underground optic cable. Appellant sued for damages. The jury found that respondent did not conduct the excavation in a careful and prudent manner and attributed 70% of the direct cause of the accident to respondent’s fault. But the district court ruled that appellant was not entitled to damages because it failed to respond to the excavation notice given by the excavator under the One Call Excavation Notice System. Because we conclude that the One Call Excavation Notice System does not abrogate the comparative fault statute or common law negligence, we reverse and remand with directions to enter judgment pursuant to the special verdict.

FACTS

Minnesota has adopted a One Call Excavation Notice System for underground excavations that are to be made in the area of underground utility lines. This system, found in Minn.Stat. Ch. 216D.01-09 (2000), requires excavators to give prior notice of a proposed excavation to all affected operators, who in turn are required to respond by locating and marking the approximate horizontal location of their underground facilities. The system creates the statutory liability of an excavator for the cost of repairs from damage to the underground facility, but relieves the excavator of liability if the damage was caused by the sole negligence of the operator or if the operator fails to respond to the notice.

Qwest Communications hired respondent Henkels & McCoy, Inc. (Henkels) to excavate a trench for a utility line. Appellant Minnesota Equal Access Network Services (MEANS), now known as Onvoy, Inc., operated a buried fiber optic cable near the excavation area. The parties agree that the excavation was subject to the notice procedure and that MEANS is an “operator” and Henkels is an “excavator” under the statute.

Henkels provided excavation notice using Gopher State One Call’s notification center, as required by Minn.Stat. § 216D.04, subd. 1(a) (2000). Gopher State sent out a “locate ticket” to MEANS because it had underground facilities in the area. The “locate ticket” instructed MEANS to locate and mark its underground facilities. MEANS received the notice from Gopher State but did not respond or mark its buried fiber optic cable.

On November 17, 1998, Henkels excavated the area and cut through MEANS’ buried fiber optic cable. MEANS’ service was interrupted. The incident caused damage of about $13,000 for repairs and $80,000 for losses from service unavailability-

MEANS sued Henkels. The jury returned a special verdict finding that Henk-els had not conducted its excavation in a careful and prudent manner and attributing 70% of the direct cause of the accident to the fault of Henkels. The jury found that the cost of necessary repairs was $13,088.34 and that damages for loss of use were $75,936.55.

The district court entered findings pursuant to the special verdict but concluded as follows:

Pursuant to Minn.Stat. § 216D.06, subd. 2b, Henkels and McCoy, Inc., does not owe any monies to Minnesota Equal Access Network Services, now known as Onvoy, Inc., for property damage to the underground facility because the operator failed to comply with section 216D.04, subdivision 3.

MEANS moved the district court to amend the conclusion, to grant judgment notwithstanding the verdict or for a new trial. The district court denied the motion. This appeal follows.

ISSUE

Does the One Call Excavator Notice System, under Minn.Stat. Ch. 216D abrogate a cause of action for common law negligence, with comparative fault, when an operator fails to respond or mark its underground facility?

ANALYSIS

Statutory interpretation is an issue of law that we review de novo. Baker v. State, 590 N.W.2d 636, 638 (Minn.1999). Words and phrases are to be construed according to their plain and ordinary meaning. Frank’s Nursery Sales, Inc. v. City of Roseville, 295 N.W.2d 604, 608 (Minn.1980). A statute should be interpreted, whenever possible, to give effect to all of its provisions, and “no word, phrase, or sentence should be deemed superfluous, void, or insignificant.” Amaral v. Saint Cloud Hosp., 598 N.W.2d 379, 384 (Minn.1999). “[V]arious provisions of the same statute must be interpreted in light of each other.” Van Asperen v. Darling Olds, Inc., 254 Minn. 62, 74, 93 N.W.2d 690, 698 (1958). Finally, courts should construe a statute to avoid absurd and unjust consequences. See Erickson v. Sunset Mem’l Park Ass’n, 259 Minn. 532, 543, 108 N.W.2d 434, 441 (1961).

I

MEANS argues that the district court erred by interpreting Minn.Stat. Ch. 216D to abrogate a common law cause of action for negligence where an operator does not respond to the notice given under the One Call Excavator Notice System.

Generally, statutes are presumed to be consistent with the common law and will not be construed to modify or alter the common law unless they expressly so provide. See, e.g., Wirig v. Kinney Shoe Corp., 461 N.W.2d 374, 377-8 (Minn.1990); In re Estate of Jobe, 590 N.W.2d 162, 166 (Minn.App.1999), review denied (Minn. May 26, 1999). More specifically, a new remedy that is created by statute will be regarded as cumulative to existing common law remedies. See, e.g., In re Shetsky, 239 Minn. 463, 469, 60 N.W.2d 40, 45 (1953). And, existing common law remedies are not to be considered abrogated by statute unless that statute clearly expresses an intention to abrogate them. Anderson v. Federated Mut. Ins. Co., 481 N.W.2d 48, 49 (Minn.1992).

The statutory liability created for excavators under the One Call Excavation Notice System is contained in Minn.Stat. § 216D.06, subd. 2 (2000) which states:

(a) If an excavator damages an underground facility, the excavator shall reimburse the operator for the cost of necessary repairs, and for a pipeline the cost of the product that was being carried in the pipeline and was lost as a direct result of the damage.
(b) Reimbursement is not required if the damage to the underground facility was caused by the sole negligence of the operator or the operator failed to comply with section 216D.04, subdivision 3.

This language does not address the common law liability of excavators for negligence. While it creates a new statutory remedy, it does not state that alternative remedies are precluded.

We conclude that Minn.Stat. Ch. 216D does not abrogate the operator’s common law cause of action for negligence, even when the operator fails to respond to the location notice. The operator’s failure to respond may, as it was here, be considered as negligence in a comparative fault analysis, but it does not preclude the action.

II

At oral argument, MEANS offered to concede that it could not recover the cost of repairs under its common law negligence claim, assuming that the creation of a statutory liability for the costs of repairs might be seen as an implied abrogation of any common law liability for those same damages. Given our analysis above that the statutory remedy is cumulative and not exclusive, we conclude that MEANS can recover for both the cost of repairs and loss of use under its common law negligence claim.

DECISION

Minn.Stat. § 216D.06, subd. 2, requires an excavator to reimburse an operator for the cost of repairs from damage to the operator’s underground facilities unless the damage is caused by the operator’s sole negligence or the operator has failed to respond to notice given under Minn. Stat. § 216D.04, subd. 3 (2000). Because the statute does not clearly express a legislative intent to abrogate alternate causes of action, including an action for negligence, we reverse and remand for entry of judgment pursuant to the special verdict, awarding damages to MEANS of $13,088.34 for the cost of repairs and of $75,936.55 for loss of use.

Reversed and remanded.


text:
    STATE of Minnesota, Respondent, v. Frederick Arden HAMILTON, Appellant.
    No. C2-02-381.
    Court of Appeals of Minnesota.
    July 16, 2002.

      Mike Hatch, Attorney General, St. Paul; and Amy Klobuehar, Hennepin County Attorney, Jean E. Burdorf, Assistant County Attorney, Minneapolis, for respondent.
    John M. Stuart, State Public Defender, Theodora Gaitas, Assistant Public Defender, Minneapolis, for appellant.
    Considered and decided by HALBROOKS, Judge, KLAPHAKE, Judge, and HANSON, Judge.
   OPINION

HANSON, Judge.

Appellant challenges the district court’s order revoking probation, arguing that the district court erred by (1) failing to make all the required Austin findings prior to revoking his probation and (2) failing to offer limited-use immunity at the revocation hearing so appellant’s testimony about the new charges could not be used against him at a trial on those charges. Because the record supports the district court’s decision to revoke appellant’s probation, and because the district court had no affirmative duty to offer appellant limited-use immunity, we affirm.

FACTS

Appellant Frederick Arden Hamilton pleaded guilty to kidnapping in 1995. Hamilton was sentenced to the presumptive term of 146 months in prison, based on his criminal history score of five points. Pursuant to a plea agreement, the district court departed dispositionally, staying execution of the sentence and placing Hamilton on probation for 15 years.

The conditions of Hamilton’s probation included that he have no arrests or charges, for any criminal offense, that were supported by probable cause. Hamilton was also ordered to cooperate with a pending homicide investigation and to obey all conditions of his probation. Thereafter, three separate probation-revocation hearings were conducted.

In 1996, Hamilton was convicted of driving under the influence. After a revocation hearing, the district court found that Hamilton had violated the terms of his probation, but his probation was not revoked. Instead, the court ordered Hamilton to pay a fíne and to spend 90 days in jail, all of which was either suspended or credited with time already served.

In 1998, Hamilton was convicted of issuing a worthless check. Again, after a revocation hearing, the district court found that Hamilton had violated the terms of his probation but did not revoke his probation. Hamilton was ordered to pay restitution and was sentenced to time already served.

Finally, in August 2001, Hamilton was charged with promoting the prostitution of a minor, in violation of Minn.Stat. § 609.322, subd. 1(2) (2000). At the revocation hearing, the state called the arresting officer, Sergeant Andrew Schmidt, as a witness. Sergeant Smith testified about (a) his interview with the two minor victims; (b) documents found in appellant’s residence and vehicle corroborating the victims’ story; and (c) verification of a pimping charge against appellant in Chicago in July of 2001. Hamilton declined to testify at the close of the state’s case-in-chief. He did, however, present mitigating circumstances which the court did not find persuasive.

The district court found by clear and convincing evidence that Hamilton was in violation of the conditions of his probation and revoked his probation, ordering him to serve the remaining 146 months of his 1995 sentence for kidnapping. The court found that Hamilton had violated the condition of his probation that he have no new charges supported by probable cause of any criminal violation. This appeal followed.

ISSUES

Did the district court abuse its discretion in revoking appellant’s probation:

1. by not making all of the required Austin findings?
2. by not offering appellant limited-use immunity at the revocation hearing so he could testify concerning the pending charges?

ANALYSIS

I

Hamilton argues that the district court abused its discretion when it did not make the findings required by State v. Austin, 295 N.W.2d 246, 250 (Minn.1980).

If a probationer violates conditions of probation, the district court may revoke probation and execute the sentence previously imposed. Minn.Stat. § 609.14, subd. 3(2) (2000). “The [district] court has broad discretion in determining if there is sufficient evidence to revoke probation and should be reversed only if there is a clear abuse of that discretion.” Austin, 295 N.W.2d at 249-50 (citations omitted). To revoke a defendant’s probation, the court must (1) designate the specific condition that was violated; (2) find that the violation was intentional or inexcusable; and (3) find that the need for confinement outweighs the policies favoring probation. Id. at 250.

The district court made specific findings relating to the first prong of the Austin analysis. The court found that Hamilton had violated the condition of his probation that he have no new criminal charges supported by probable cause. The state concedes that the court did not make specific findings under the second and third prongs of the Austin analysis. But, “where the record contains sufficient evidence to warrant the revocation,” a court’s failure to make the express findings is not an abuse of discretion. State v. Theel, 532 N.W.2d 265, 267 (Minn.App.1995), review denied (Minn. July 20, 1995).

Hamilton argues that there is insufficient evidence to show that he “intentionally and inexcusably” violated the conditions of his probation — the second prong of the Austin analysis. Although the district court did not specifically state that Hamilton “intentionally and inexcusably” violated his probation, the record clearly supports an inference that he did so. See In re Welfare of J.K., 641 N.W.2d 617, 621 (Minn.App.2002) (stating that where the court did not specifically find that appellant’s violations were “intentional and inexcusable,” such a finding can be inferred from a reading of the district court’s order as a whole).

Hamilton also argues that the court did not consider whether the need for confinement outweighed the benefits of continuing his probation. Hamilton contends that in his case, the need for confinement did not outweigh the policies favoring probation because (1) his prior probation violations were minimal and sporadic; and (2) his probation was revoked on the basis of new charges, not convictions. He relies on the statement in Austin that

[T]he purpose of probation is rehabilitation and revocation should be used only as a last resort when treatment has failed. There must be a balancing of the probationer’s interest in freedom and the state’s interest in insuring his rehabilitation and the public safety.

Austin, 295 N.W.2d at 250 (citation omitted). But revocation of a stayed sentence is justified when: “[d]espite prior use of expanded and more onerous conditions of a stayed sentence, the offender persists in violating conditions of the stay.” Minn. Sent. Guidelines III.B. And, while the sentencing guidelines urge the courts to exercise restraint in imprisoning those who violate probation conditions where the original offense was of a lower severity,

[l]ess judicial forbearance is urged for persons violating conditions of a stayed sentence who were convicted of a more severe offense or who had a longer criminal history.

Id.

Hamilton was convicted of a severity level eight offense, kidnapping. He had a criminal history score of five. He was continued on probation after two prior violations. His repeated failure to abide by the conditions of his probation provided a sufficient basis for the district court to conclude that he was unwilling to be rehabilitated, and therefore that the policies favoring probation are outweighed by the need for confinement.

While we would prefer that the district court make explicit findings on each element articulated in Austin, we conclude on this record that the district court’s decision to revoke Hamilton’s probation was amply supported by evidence and was not an abuse of discretion.

Hamilton argues that the district court could not determine whether the need for confinement outweighs the benefits of probation until Hamilton was actually tried on the new charges. He suggests that an acquittal on the new charges might make revocation inappropriate. Hamilton’s argument reflects a misunderstanding of the terms of probation. First, it was not necessary to obtain a conviction on the new charges in order to revoke probation. It was only necessary to prove that the new charges were based on probable cause. Second, it is within the district court’s discretion to conduct a revocation hearing before the trial on the new charges. Minn. R.Crim. P. 27.04, subd. 2(4). In State v. Phabsomphou, 530 N.W.2d 876, 878 (Minn.App.1995), review denied (Minn. June 29, 1995), we held that the district court did not abuse its discretion in proceeding with the revocation hearing, even when new charges were the sole basis for revocation.

While our conclusion in Phabsomphou was based in part on the district court’s offer of limited-use immunity to the defendant in that case (the issue we will discuss next), we conclude that the district court’s justification for proceeding with the revocation hearing was even greater than in Phabsomphou because the issue was not whether Hamilton was guilty of the new charges but only whether they were supported by probable cause. We hold that the district court acted within its discretion in revoking Hamilton’s probation prior to the resolution of the new charges against him.

II

Hamilton argues that the district court violated his due process rights when it failed to offer him limited-use immunity to testify about the new criminal charges. With limited-use immunity, a defendant’s statements cannot be used substantively at the trial on the new criminal charges. Phabsomphou, 530 N.W.2d at 878-79.

The record does not reflect that Hamilton ever requested limited-use immunity. We conclude that Phabsomphou did not obligate the district court to unilaterally offer a defendant limited-use immunity at the revocation hearing. While we recognize that an offer of limited-use immunity may be useful in some cases to guard a defendant’s privilege against self-incrimination, we hold that the district court is not obligated to offer it, especially when, as here, the revocation of probation is not contingent on proof of guilt but may rest on proof of probable cause alone.

Further, we conclude that Hamilton’s argument, that had he been offered limited-use immunity he might have testified at the hearing, is too speculative and remote, especially when Hamilton subsequently agreed to waive his right to testify at the trial on the new charges.

DECISION

The district court had no affirmative duty to offer Hamilton limited-use immunity to testify at his probation-revocation hearing and it did not abuse its discretion in revoking the stay of Hamilton’s 1995 sentence and ordering its execution.

Affirmed.

      . Hamilton's presumptive sentence was stayed because he agreed to assist the prosecution in a pending homicide investigation.