author: WRIGHT, Judge.

text:
    George MURPHY, trustee for the heirs and next-of-kin of Mary Murphy, deceased, Respondent, v. ALLINA HEALTH SYSTEM, d/b/a United Hospital, et al., Defendants (C1-03-124), Appellants (C0-03-213), Parkway Family Physicians LLC, et al., Appellants (C1-03-124), Defendants (C0-03-213).
    Nos. C1-03-124, C0-03-213.
    Court of Appeals of Minnesota.
    Aug. 26, 2003.

      Roger J. Aronson, Clifford J. Knippel, Rischmiller, Knippel & Aronson, Minneapolis, MN, for respondent Murphy.
    Kathryn D. Messerich, Bradley J. Bet-lach, Halleland, Lewis, Nilan, Sipkins & Johnson, P.A., Minneapolis, MN, for appellants Allina Health System, et al.
    Richard J. Thomas, Chad J. Hintz, Burke & Thomas, P.L.L.P., St. Paul, MN, for appellants Parkway Family Physicians, et al.
    Considered and decided by LANSING, Presiding Judge, WRIGHT, Judge, PARKER, Judge.

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

   OPINION

WRIGHT, Judge.

In this wrongful-death action premised on medical malpractice, the district court denied appellants’ motions for summary judgment, concluding that the action was not barred by the applicable statute of limitations. In an amended order, the district court certified as important and doubtful the following question: ‘What is the proper length of time that applies to wrongful death actions premised on allegations of medical malpractice brought after August 1, 1999?” In these consolidated appeals, we rephrase and answer the certified question, and we affirm.

FACTS

For the limited purposes of this appeal, the following facts are undisputed. Mary Murphy went to United Hospital on March 11, 1998, complaining of chest pains. She was treated by Dr. Francisco DeLaRosa, who performed tests and reviewed Murphy’s medical history. Dr. De-LaRosa discharged Murphy the same day with instructions to see her regular family physician the next day. Murphy visited her family physician, Dr. David Ness, at Parkway Family Physicians, LLC, the following day and again on March 20. Murphy died in her home on April 28, 1998, and the autopsy revealed that she suffered from atherosclerotic heart disease.

On February 14, 2002, respondent George Murphy, the surviving spouse of Mary Murphy, commenced this lawsuit as trustee under Minn.Stat. § 573.02, subd. 1 (2000), the wrongful-death statute, alleging negligence against appellants Allina Health System (doing business as United Hospital), Dr. DeLaRosa, Parkway Family Physicians, LLC, and Dr. Ness.

Appellants moved for summary judgment, arguing that respondent’s action was time-barred by the newly amended wrongful-death statute, Minn.Stat. § 573.02 (2002), which establishes a three-year statute of limitations retroactive to August 1, 1999. Respondent countered that his suit was timely because the four-year limitations provision of the medical-negligence statute, Minn.Stat. § 541.076 (Supp.1999), applied, as it was incorporated by reference into Minn.Stat. § 573.02 (2000) at the time respondent brought his action. Respondent asserted that, although the 2002 amendments to Minn.Stat. § 573.02 were “effective retroactive to August 1, 1999,” the legislature did not intend to divest plaintiffs of their medical-malpractice claims because the statute was silent as to the effect on pending cases. Respondent further asserted that, to the extent the 2002 amendments to the -wrongful-death statute deprive him of an existing cause of action, the statute.is unconstitutional.

In October 2002, the district court denied appellants’ summary judgment motions, concluding that the 2002 amendments to the wrongful-death statute did not apply to respondent’s cause of action, but only applied to causes of action that accrued on or after August 1, 1999. The district court determined that the two-year limitations provision of Minn.Stat. § 541.07 (1998) in effect at the time of Mary Murphy’s death applied, but because it was retroactively amended in 1999 — before respondent brought his suit — its four-year limitations provision extended the time in which respondent could bring his suit. The district court declined to reach the question of constitutionality in light of its conclusion.

In an amended order, the district court certified the following question as important and doubtful: “What is the proper length of time that applies to wrongful death actions premised on allegations of medical malpractice brought after August 1, 1999?” Pursuant to Minn. R. CivApp. P. 103.03(i), appellants appeal from the district court’s November 2002 amended order denying their motions for summary judgment.

ISSUE

What is the applicable limitations period for wrongful-death claims premised on medical malpractice brought after August 1,1999, but before August 1, 2002?

ANALYSIS

Rule 103.03(i) provides that an appeal may be taken to the court of appeals “if the [district] court certifies that the question presented is important and doubtful, from an order which * ⅜ ⅜ denies a motion for summary judgment[.]” Minn. R. Civ.App. P. 103.03(i). Because this appeal arises from a denial of summary judgment, we review the record to determine whether a genuine issue of material fact exists and whether the law was correctly applied. Art Goebel, Inc. v. N. Suburban Agencies, Inc., 567 N.W.2d 511, 515 (Minn.1997).

For the limited purposes of this appeal, the parties agree and we conclude that there are no genuine issues of material fact. We review de novo the district court’s application of the law. Id. Moreover, the certified question raises an issue of statutory interpretation to determine the applicable statute of limitations, which we review de novo. Benigni v. County of St. Louis, 585 N.W.2d 51, 54 (Minn.1998). “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.” Am. Family Ins. Group v. Schroedl, 616 N.W.2d 273, 277 (Minn.2000) (citation and quotation omitted). If the legislative intent “is clearly discernible from plain and unambiguous language, statutory construction is neither necessary nor permitted and courts apply the statute’s plain meaning.” Am. Tower, L.P. v. City of Grant, 636 N.W.2d 309, 312 (Minn.2001) (citation omitted).

We begin with an examination of the legislative amendments and enactments affecting the statutes we must analyze. The statute of limitations for wrongful-death actions is set forth in Minn.Stat. § 573.02, subd. 1 (2002). At the time of Mary Murphy’s death, the statute provided, in pertinent part:

When death is caused by the wrongful act or omission of any person or corporation, the trustee appointed ⅜ ⅜ ⅜ may maintain an action therefore if the decedent might have maintained an action, had the decedent lived, for an injury caused by the wrongful act or omission. An action to recover damages for a death caused by the alleged professional negligence of a physician, surgeon, dentist, hospital * * * shall be commenced within the time set forth in section 541.07, subdivision 1.

Minn.Stat. § 573.02, subd. 1 (1998). At the same time, Minn.Stat. § 541.07 (1998) provided: “Except where the Uniform Commercial Code, this section, section 148A.06, or section 541.073 otherwise prescribes, the following actions shall be commenced within two years: (1) for * * * all actions against physicians, surgeons, * * * hospitals * * * for malpractice, error, mistake or failure to cure, whether based on contract or tort[.]” Thus, at the time of Mary Murphy’s death, the statute of limitations for a wrongful-death claim premised on medical malpractice was two years from the date of the alleged malpractice. See DeRogatis v. Mayo Clinic, 390 N.W.2d 773, 775-76 (Minn.1986) (holding accrual date in wrongful-death action is date of alleged underlying malpractice rather than date of death).

In 1999, the legislature overhauled the statute of limitations provisions for medical-malpractice actions by amending section 541.07 and enacting section 541.076. See 1999 Minn. Laws ch. 23, §§ 1-3. As a result, the previous reference in section 541.07 to malpractice actions against physicians, surgeons, and hospitals was deleted and section 541.076 now addresses “health care provider” malpractice actions. Section 541.07 was amended to include specific language creating an exception to the two-year statute of limitations period for medical-malpractice actions and currently provides, in pertinent part:

Except where the Uniform Commercial Code, this section, section 148A.06, 541.05, 541.073, or 5⅛1.076 otherwise prescribes, the following actions shall be commenced within two years: [listing common law torts, but excluding medical malpractice actions].

Minn.Stat. § 541.07 (2002) (emphasis added). Section 541.076 lengthened the statute of limitations for medical-malpractice claims from two years to four years:

(b) An action by a patient or former patient against a health care provider alleging malpractice, error, mistake, or failure to cure, whether based on a contract or tort, must be commenced within four years from the date the cause of action accrued.

Minn.Stat. § 541.076(b) (2002). The effective date of the legislation was August 1, 1999, and the legislation applied “to actions commenced on or after that date.” 1999 Minn. Laws eh. 23, §§ 2, 3. The wrongful-death statute, whose text was unchanged at that time, continued to reference section 541.07, which now created an exception that extended the limitations period for medical-malpractice actions from two years to four years under the newly enacted section 541.076. See Minn.Stat. § 573.02, subd. 1 (1998); MinmStat. §§ 541.07, .76 (Supp.1999).

In 2002, after the present action was commenced, the legislature amended the wrongful-death statute. Section 573.02 currently provides, in relevant part:

An action to recover damages for a ' death caused by the alleged professional negligence of a physician, surgeon, dentist, hospital or sanitarium * * * shall be commenced within three years of the date of death, but in no event shall be commenced beyond the time set forth in section 541.076.

Minn.Stat. § 573.02, subd. 1 (2002). Thus, based on a plain reading of the statute, a wrongful-death action based on a medical-malpractice claim must be brought within three years of the date of death, but never more than four years from the date the cause of action accrued. Generally, a wrongful-death cause of action based on medical malpractice accrues on the date of the last treatment. Broek v. Park Nicollet Health Servs., 660 N.W.2d 439, 442-43 (Minn.App.2003) (citing Johnson v. Winthrop Labs., 291 Minn. 145, 149, 190 N.W.2d 77, 80 (1971)), review denied (Minn. July 15, 2003). Consequently, some wrongful-death actions may be barred under the statute even if they are brought on the day of death. See DeCosse v. Armstrong Cork Co., 319 N.W.2d 45, 48 (Minn.1982) (interpreting 1978 amendment to wrongful-death statute that limited actions, other than those involving medical malpractice, to three years of the date of death, provided action is commenced within six years of the act or omission). The legislature established the effective date of the 2002 amendment to Minn.Stat. § 573.02 as “retroactive to August 1, 1999.” 2002 Minn. Laws ch. 403, § 6. Significantly, the language does not state that the amendment applies to pending claims so as to deprive plaintiffs of their causes of action.

With this series of statutory amendments in mind, we are asked to determine what the applicable statute of limitations is for wrongful-death claims premised on allegations of medical malpractice, brought between August 1, 1999, and July 31, 2002. The district court concluded that the 2002 amendments to the wrongful-death statute did not apply to respondent’s action and denied appellants’ summary judgment motions. Relying primarily on Gomon v. Northland Family Physicians, Ltd., 645 N.W.2d 413 (Minn.2002), the district court concluded that the 2002 amendment to section 573.02 applied retroactively to causes of action accruing on or after August 1, 1999, but not to causes of action that accrued prior to August 1, 1999, but were brought after August 1, 1999. Thus, according to the district court, because Mary Murphy died in April of 1998 after being treated in March 1998, respondent’s cause of action accrued before August 1, 1999, and, therefore, the 2002 amendments do not apply.

Although we agree with the district court’s conclusion that respondent’s claim is not time-barred, our rationale differs. Respondent’s claim is timely, not primarily because of when respondent’s claim accrued but because of when he brought his claim. The statute of limitations in effect when the action is brought controls, unless the time limit for the action set by the former statute of limitations has elapsed while the old statute of limitations was in effect and before the claim was brought. State ex rel. Donovan v. Duluth St. Ry. Co., 150 Minn. 364, 366, 185 N.W. 388, 389 (1921); see also Sarafolean v. Kauffman, 547 N.W.2d 417, 421 (Minn.App.1996), review denied (Minn. July 10, 1996); Wschola v. Snyder, 478 N.W.2d 225, 226-27 (Minn.App.1991), review denied (Minn. Feb. 10, 1992). Thus, the new statute of limitations applies to all claims where the former statute has not run before the new statute of limitations takes effect. Donovan, 150 Minn. at 366, 185 N.W. at 389.

Here, respondent brought his cause of action in February 2002, after the 1999 amendment to the medical-malpractice statute extended the statute of limitations from two to four years, ,Minn.Stat. §§ 541.07, .076 (2000), but before the enactment of the 2002 amendment to the wrongful-death statute, ■ MinmStat. § 573.02, reducing the statute of limitations to three years. The plain language of the amendments establishes that the 1999 amendment expanded the limitations period for causes of action premised on medical malpractice, including wrongful-death claims, while the 2002 amendment subsequently shortened the limitations period for wrongful-death claims premised on medical malpractice. The 1999 amendment was in effect at the time respondent brought his claim and, therefore, controls the present action, though the legislature intended both amendments to apply retroactively. See 2002 Minn. Laws ch. 403, § 6; 1999 Minn. Laws ch. 23, §§ 2, 3 (establishing effective dates). Because the two amendments were not enacted in the same year, a three-year window was created in which a plaintiff, like respondent, could bring a wrongful-death claim premised on medical malpractice based on the 1999 amendment, which established a four-year limitations period for such claims.

Appellants contend that, because the legislature did not amend the wrongful-death statute of limitations when it amended the medical-malpractice statute of limitations in 1999, the wrongful-death statute continued to refer to the two-year limitations provision set forth in Minn.Stat. § 541.07. Appellants’ arguments rely on the statutory language of the 1998 version of section 573.02, subdivision 1, stating that wrongful-death actions premised on medical malpractice must be brought “within the time set forth in section 541.07,” to the exclusion of the statutory language of section 541.07, which specifically exempts actions based on malpractice from the two-year limitations period. See Minn.Stat. §§ 645.19 (providing for construction of provisos and exceptions), .26, subd. 1 (2002) (stating more particular provision prevails over the more general provision). Under appellants’ interpretation, in 1999, the legislature, retained the two-year limitations provision for. medical-malpractice wrongful-death actions and extended the limitations.period to four years for claims alleging medical-malpractice not resulting in death. The legislature then extended the wrongful-death limitations provision from two years to three years in 2002. But a full and fair reading of the legislative record indicates otherwise. See Minn.Stat. § 645.16(7) (2002) (stating courts may consider contemporaneous legislative history to discern legislative intent). Where the words of the statute are clear and free from ambiguity, we must not engage in any further construction. Minn.Stat. § 645.16 (2002). In light of the canons of construction, which govern our statutory interpretation and analysis, appellants’ arguments must be rejected.

Appellants’ arguments are premised on the assumption that the wrongful-death statute is untethered to the medical-malpractice statute. But by their plain language, the two statutes are intricately linked. Minn.Stat. § 645.31, subd. 2 (2002) (stating that, where an act adopts the provisions of another law by reference, it also adopts by reference any subsequent amendments of such other law, except where there is clear legislative intention to the contrary). The 1999 amendments to section 541.07 expressly created an exception to the two-year limitations provision for medical-malpractice actions by (1) deleting the old language pertaining to malpractice actions; (2) adding section 541.076 to address medical-malpractice actions; and (3) expressly delineating section 541.076 as an exception to the two-year limitations provision. See 1999 Minn. Laws ch. 23, § 1. Further, appellants’ interpretation disregards the preliminary paragraph of section 541.07, which provides “[e]xcept where * * * section * * * 541.076 otherwise prescribes, the following actions shall be commenced within two years[.]” Minn.Stat. § 541.07; see Minn. Stat. §§ 645.17(2) (stating “the legislature intends the entire statute to be effective and certain”), .16 (2002) (stating “[ejvery law shall be construed, if possible, to give effect to all its provisions”).

Alternatively, appellants assert that the 2002 amendment applies to deprive respondent of his cause of action because the legislature intended the amendment’s three-year limitations period to apply retroactively to August 1, 1999. Appellants’ argument fails to consider, however, that, when a statute of limitations is amended while a claim is pending, the statute of limitations in effect at the time the plaintiff brought the action controls. Donovan, 150 Minn, at 366, 185 N.W. at 389; see also Sarafolean, 547 N.W.2d at 421; Wschola, 478 N.W.2d at 226-27.

Because we conclude that respondent’s action is not barred, we need not address his argument that the 2002 amendment to the wrongful-death act deprives him of an existing cause of action resulting in an unconstitutional application of the act.

DECISION

A claim is governed by the statute of limitations in effect at the time the action is brought. The statute of limitations for wrongful-death actions premised on allegations of medical malpractice brought between August 1, 1999, and July 31, 2002, is four years from the date the cause of action accrued. Under Minn.Stat. § 573.02, subd. 1 (2002), the statute of limitations for wrongful-death actions premised on medical malpractice brought on or after August 1, 2002, is three years from the date of death, provided the action is brought within four years from the date the cause of action accrued.

Affirmed; certified question answered.

      . Gomon held that the 1999 amendment applied to all medical-malpractice claims that came within the expanded four-year limitations period and are commenced on or after the effective date of the new statute, including those that had become stale. Id. at 419-20.

      . We note that, because the limitations period is an element of the cause of action in wrongful-death claims, a defendant may, in certain circumstances, have a vested right in the limitations period such that constitutional or other constraints may limit the legislature’s power to enact retroactive legislation that revives claims, such as when the time for filing a claim under the former statute of limitations has elapsed at the time that the new statute of limitations extends the period to file a lawsuit. Donaldson v. Chase Sec. Corp., 216 Minn. 269, 277, 13 N.W.2d 1, 5 (1943). Here, however, because respondents’ claim was not stale when the 1999 amendment extended the limitations period, appellants had not acquired a vested right in the shorter two-year limitations period.

      . Legislative history suggests that the legislature intended to "coordinate" the two limitations provisions in sections 541.076 and 573.02 by providing a four-year limitations period for all claims arising out of medical malpractice. See Senate Floor Debate on H.F. 1051 (May 16, 2001) (statement of Sen. Neu-ville). But this intent is not reflected in the language of the wrongful-death statute. Because the language of Minn.Stat. §§ 573.02 and 541.076 is unambiguous, our holding is based on the plain meaning of the language used. Minn.Stat. § 645.16 (2002). We refer to the legislative history for the 2001 bill, which was vetoed by the governor in 2001 because it was reintroduced in the same form in 2002 and ultimately enacted in May 2002.


source: Caselaw Access Project

author: HUDSON, Judge.

license: Public Domain

text:
    Susan GAERTNER, Ramsey County Attorney on behalf of the MINNESOTA STATE PATROL, Respondent, v. ONE 1999 DODGE PICKUP TRUCK, MN LIC. NO. GKR-391, Appellant.
    No. C2-03-66.
    Court of Appeals of Minnesota.
    Aug. 26, 2003.

      Susan Gaertner, Ramsey County Attorney, Thomas E. Ring, Assistant County Attorney, St. Paul, MN, for respondent.
    Rodd A. Tsehida, St. Paul, MN, for appellant.
    Considered and decided by HUDSON, Presiding Judge, WILLIS, Judge, and FORSBERG, Judge.

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

   OPINION

HUDSON, Judge.

The subject of this forfeiture proceeding is one 1999 Dodge pickup truck, Minnesota license number GRK-391 (the truck). Martin John Stoltzman owns the truck, and he appeals from a stipulation following the district court’s July 10, 2002, order refusing to dismiss the forfeiture proceedings. The state patrol seized the truck in March 2002 upon arresting Stoltzman for fleeing a police officer; the state then instigated forfeiture proceedings. On March 28, 2002, the district court ordered that the truck be retained by the state patrol until the court made a final determination regarding the forfeiture of the truck. Shortly thereafter, Stoltzman attempted to redeem possession of the truck under the surrender provision in Minn.Stat. § 609.531, subd. 5a(b) (2000), by surrendering the certificate of title to the state patrol. Relying on the district court’s March 28, 2002, order, the state patrol did not surrender the vehicle. The district court ruled on a subsequent motion for dismissal that Minn.Stat. § 609.5312, subd. 4 (2000), relating to forfeiture proceedings for fleeing a police officer in a motor vehicle, precluded relief under the surrender provision in Minn.Stat. § 609.531, subd. 5a(b). Because we conclude that the specific forfeiture provision relating to fleeing a police officer controls and that both provisions can be effectuated, we affirm.

FACTS

Near midnight on March 24, 2002, a state trooper detected a truck traveling at 71 miles per hour in a 55-mile-per-hour zone on I-35E in St. Paul. The trooper finally stopped the truck near Larpenteur Avenue, got out of the squad car and approached the truck. As he neared the back end of the truck, it accelerated at a high rate of speed. The trooper followed the truck as it turned off the next exit, Maryland Avenue, and observed the truck almost lose control on the ramp. From Maryland Avenue, the truck proceeded at a high rate of speed and made several turns. As it was completing the final turn, the driver and registered owner of the truck, Martin John Stoltzman, lost control of the truck and it veered into a snowbank, striking a utility pole. Stoltzman continued to flee on foot and was apprehended after he tripped and fell. Even then, he continued to struggle with the officers. Stoltzman smelled strongly of alcohol and admitted to fleeing police on previous occasions. The state patrol arrested Stoltzman and seized the truck.

The state charged Stoltzman with felony fleeing a police officer in a motor vehicle, in violation of MinmStat. § 609.487, subd. 3 (2000), and simultaneously filed a motion to forfeit Stoltzman’s truck under Minn. Stat. § 609.5312, subd. 4 (2000), which governs forfeitures for fleeing police officers. Stoltzman failed to appear at the first scheduled hearing. The district court filed a preliminary order, ruling that the state patrol should retain possession of the truck until final disposition of the proceedings. On April 1, 2002, Stoltzman, relying on the surrender provision in Minn.Stat. § 609.531, subd. 5a(b) (2000), attempted to redeem possession of the truck by tendering the certificate of title to the truck along with a letter from his attorney. But the state patrol did not surrender the truck, and Stoltzman contends that the state patrol continues to retain possession of the title as well.

Stoltzman pleaded guilty to the charged offense on April 25, 2002, and the court sentenced him on June 6, 2002. But on May 15, 2002, Stoltzman filed a motion to dismiss the forfeiture proceedings, requesting attorney fees. The district court denied Stoltzman’s motion on July 10, 2002, concluding that Minn.Stat. § 609.5312, subd. 4, specifically governs forfeitures for fleeing a police officer; while Minn.Stat. § 609.531 (2000), in contrast, addresses seizures and forfeitures generally. Therefore, the state patrol was under no obligation to surrender Stoltz-man’s truck. Moreover, the district court found that the legislature differentiated between the two methods available to redeem possession of personal property pending forfeiture under Minn.Stat. § 609.531, subd. 5a: (1) subdivision 5a(a) applies to all pending forfeitures, and (2) subdivision 5a(b) only applies to vehicles seized under that section [Minn.Stat. § 609.531]. The district court concluded that because the pending forfeiture was brought under § 609.5312, subd. 4, the surrender option in § 609.531, subd. 5a(b), is inapplicable. Based on this holding, the district court did not reach the issue of attorney fees.

The district court, however, did not enter a final judgment; therefore, Stoltzman could not appeal from that order. Accordingly, the parties entered into a stipulation on October 24, 2002, approved by the district court on October 31, 2002, providing that, if either-party perfects an appeal, the state patrol shall postpone forfeiture of Stoltzmari’s truck pending appellate resolution. This appeal follows.

ISSUE

Is a vehicle forfeiture for fleeing a police officer in a motor vehicle exclusively governed by the forfeiture proceedings set forth in Minn.Stat. § 609.5312, subd. 4 (2000)?

ANALYSIS

In this appeal, we must determine the correct construction of, and reconciliation between, Minn.Stat. § 609.531, subd. 5a(b) (2000), and Minn.Stat. § 609.5312, subd. 4 (2000), of the Minnesota statutory forfeiture scheme. Because section 609.5312, subdivision 4, requires proof of a conviction before a vehicle is subject to forfeiture, the specific question here involves the proper disposition of the seized vehicle pending the commencement of the forfeiture action upon conclusion of the criminal case.

Minn.Stat. § 609.531, subd. 5a(b), provides:

If the owner of a motor vehicle that has been seized under this section seeks possession of the vehicle before the forfeiture action is determined, the owner may surrender the vehicle’s certificate of title in exchange for the vehicle. The motor vehicle must be returned to the owner within 24 hours if the owner surrenders the motor vehicle’s certificate of title to the appropriate agency, pending resolution of the forfeiture action.

(Emphasis added.) Minn.Stat. § 609.5312, subd. 4(a), provides:

A motor vehicle is subject to forfeiture under this subdivision if it was used to commit a violation of section 609.487 [fleeing a police officer] and endanger life or property. A motor vehicle is subject to forfeiture under this subdivision only if the offense is established by proof of a criminal conviction for the offense. Except as otherwise provided in this subdivision, a forfeiture under this subdivision is governed by sections 609.531 [general forfeiture rules], 609.5312 [specific “nondrug” crimes], 609.5313 [forfeiture by “judicial action”], and 609.5315, subdivision 6 [disposition of forfeited property].

(Emphasis added.) The statute further provides that where a vehicle is seized subject to forfeiture for fleeing police, it shall be returned after a hearing if the district court finds that (a) the prosecutor has not charged the predicate fleeing felony; (b) the owner has demonstrated a defense to forfeiture; or (c) the owner has demonstrated that seizure would create an undue hardship. Id., subd. 4(b).

Stoltzman argues that the state patrol “violated (and continues to violate) the unambiguous language of Minn.Stat. § 609.531, subd. 5a(b),” by failing to release the truck to him in exchange for surrender of the certificate of title. Stoltz-man contends that his failure to appear at the hearing, within 96 hours of seizure, pursuant to Minn.Stat. § 609.5312, subd. 4(b), does not affect his ability to recover his truck under the surrender provision in Minn.Stat. § 609.531, subd. 5a(b). Stoltz-man’s argument is based on the assumption that Minn. Stat § 609.5312, subd. 4, does not exclusively control the return of a seized vehicle pending forfeiture for fleeing a police officer — an argument he claims is buttressed by the fact that section 609.5312, subdivision 4, provides that vehicle forfeiture for fleeing a police officer is also governed by section 609.531 (2000). Thus, Stoltzman contends that section 609.531 and section 609.5312, subdivision 4, merely represent alternative grounds for the return of a seized vehicle pending forfeiture for fleeing a police officer. We disagree.

Statutory construction is a question of law reviewed de novo. Brookfield Trade Ctr., Inc. v. County of Ramsey, 584 N.W.2d 390, 393 (Minn.1998). A district court’s application of the law to undisputed facts is a “conclusion of law fully renewable” by this court. Lee v. Hunt, 642 N.W.2d 57, 59 (Minn.App.2002) (citation omitted). When determining whether two statutes may be reconciled, we are guided by the canons of statutory interpretation, which provide that effect should be given to both statutes wherever possible. Id. at 60. Of course, laws should be construed to effectuate all provisions wherever possible. Minn.Stat. § 645.16 (2000) (explaining legislative intent controls). “In ascertaining the intention of the legislature” we are mindful of the presumptions that the legislature does not intend “absurd, impossible of execution, or unreasonable” results and that the legislature “intends the entire statute to be effective and certain.” Minn. Stat. § 645.17(1), (2) (2000) (discussing presumptions in ascertaining legislative intent). When statutory language is clear and free from ambiguity, we will not disregard “the letter of the law ... under the pretext of pursuing the spirit.” Minn.Stat. § 645.16. We apply the plain and ordinary meaning when construing the scope and meaning of a statute. Chapman v. Comm’r of Revenue, 651 N.W.2d 825, 831 (Minn.2002). Where the legislature’s intention is “clearly manifested by plain and unambiguous language, no construction is necessary or permitted.” Ed Herman & Sons v. Russell, 535 N.W.2d 803, 806 (Minn.1995) (citation omitted).

But where statutory language is “unclear or ambiguous, a court may refer to the legislative history surrounding the statute’s enactment to ascertain its legislative intent.” Id. (citation omitted). Where a general law conflicts with a more specific one, care should be taken to effectuate both. Minn.Stat. § 645.26, subd. 1 (2000). But where the conflict proves to be irreconcilable, the more particularized provision prevails as an exception unless the general law was enacted at a later date. Id.

This is an issue of first impression. We conclude that the statutory language is ambiguous. Thus, because of the apparent conflict between the two forfeiture provisions, we first briefly examine legislative history in order to best determine legislative intent.

Prior to 1988, forfeiture was governed by a single statute. Minn.Stat. § 609.581 (1986). But “[d]ue to the disparate nature of forfeiture actions, in 1988 the Minnesota legislature chose to divide the various actions and assign their control to individual specific statutes.” Johnson v. Multiple Misc. Items, 1-424, 523 N.W.2d 238, 239 (Minn.App.1994). Moreover, the 1988 legislature directed that the forfeiture scheme should be “liberally construed” to accomplish its “remedial purposes”:

(1) to enforce the law;
(2) to deter crime;
(3) to reduce the economic incentive to engage in criminal enterprise;
(4) to increase the pecuniary loss resulting from the detection of criminal activity; and
(5) to forfeit property unlawfully used or acquired and divert the property to law enforcement purposes.

Minn.Stat. § 609.531, subd. la (1988).

In 1993, the legislature amended Minn. Stat. § 609.531, subd. 5a, to include a provision allowing vehicle owners to reclaim seized vehicles by surrendering the certificate of title. Minn.Stat. § 609.531, subd. 5a(b) (Supp.1993). Significantly, in 1995, the legislature amended Minn.Stat. § 609.5312 to include a provision dealing specifically with the offense of fleeing police officers. Minn.Stat. § 609.5312, subd. 4 (Supp.1995).

Thus, following the 1988 restructuring, Minn.Stat. § 609.531 (2000) became the repository of “general rules” governing various forfeiture proceedings including: (1) subdivision 1 — providing definitions and a list of designated offenses; (2) subdivision 1(a) — providing a statement of legislative intent; (3) subdivision 4 — providing a description of conditions under which property may be seized; (4) subdivision 5 — providing a description of law enforcement interests in seized property; (5) subdivision 5a — providing the surrender provision under which an owner may take repossession; and (6) subdivision 6a — providing that a conviction of a forfeitable offense results in a presumption of forfeiture of the property.

As both parties acknowledge, Minn.Stat. § 609.581, subd. 5a(b), provides that the owner of a motor vehicle seized under this section may seek possession by surrendering the certificate of title. But Stoltzman’s argument that this more general forfeiture provision provides an alternative means for securing his truck is weakened by the fact that the truck was not seized pursuant to Minn.Stat. § 609.581, subd. 5a(b). All of the relevant pleadings, as well as the district court’s July 10, 2002, order, indicate that the forfeiture was based upon § 609.5312, subd. 4 (2000), which specifically governs forfeitures for fleeing a police officer. Moreover, there is nothing in section 609.531 which suggests that the certificate of title may be surrendered for possession where the seized vehicle was used to flee police. As provided by the 1988 and subsequent legislative changes, that situation is now specifically contemplated by and covered within MinmStat. § 609.5312, subd. 4.

Thus, although not models of clarity, both statutes can be effectuated harmoniously, particularly when considered in light of the legislative history. Accordingly, we conclude that Minn.Stat. § 609.531 is a repository of general forfeiture rules, while Minn.Stat. § 609.5312, subd. 4, expressly and exclusively governs forfeitures involving fleeing a police officer in a motor vehicle.

Stoltzman notes that section 609.5312, subdivision 4(a), specifically states that “a forfeiture under this subdivision is governed by section[ ] 609.531.” Thus, Stoltz-man argues, the provisions are consistent and this court should, as a matter of statutory construction, give effect to both provisions, if possible, and allow Stoltzman to proceed under either forfeiture provision. But the portion of the statute Stoltzman quotes is misleading because he has selectively excised from it a significant, and we believe, dispositive modifier. The sentence at issue begins as follows: “Except as otherwise provided in this subdivision, a forfeiture ... is governed by section[ ] 609.531....” Minn.Stat. § 609.5312, subd. 4(a) (emphasis added).

Significantly, what follows within the subdivision is the framework for the return of a vehicle used to flee police. The subdivision is silent about any option to surrender the certificate of title for possession; instead, it provides that where a vehicle is seized subject to forfeiture for fleeing police, it shall be returned after a hearing if the district court finds that, (a) the prosecutor has not charged the predicate fleeing felony; (b) the owner has demonstrated a defense to forfeiture; or (c) the owner has demonstrated that seizure creates or would create an undue hardship. Minn.Stat. § 609.5312, subd. 4(b). This language makes it clear that section 609.5312, subdivision 4, is the exclusive mechanism governing the return of a seized vehicle pending forfeiture for fleeing a police officer. Furthermore, even if the provisions are deemed irreconcilable, Minn.Stat. § 645.26, subd. 1, instructs that the more specific provision shall prevail and shall be construed as an exception to the general provision. Thus, section 609.5312, subdivision 4, which specifically governs vehicle forfeitures for fleeing police prevails over section 609.531, subdivision 5a(b), which addresses the general ability to surrender the certificate of title for possession where the vehicle was seized under that section. Moreover, section 609.5312, subdivision 4, was passed later in time and therefore prevails over section 609.531. See Minn.Stat. § 645.26, subd. 4 (stating that a more particularized provision prevails as an exception, unless the general law was enacted at a later date).

Our conclusion is further buttressed by the legislative intent expressed in Minn. Stat. § 609.531, subd. la, which provides that “[sections 609.531 to 609.5318 must be liberally construed to carry out ... [its] remedial purposes.” Here, Stoltzman sought return of the very instrumentality used to commit the crime of felony-level fleeing a police officer in a motor vehicle. Moreover, the crime was committed in a manner that “endanger[ed] life or property,” a finding implicit in the district court’s July 10, 2002 order. See Minn.Stat. § 609.5312, subd. 4(a) (requiring forfeiture where vehicle used in manner that “endangered] life or property”). As the state recognizes, under these circumstances, return of the vehicle while forfeiture proceedings are pending does little to discourage further unlawful use of the actual instrumentality used to commit the crime.

Stoltzman further contends that he has received his punishment by pleading to the sole count in the criminal case and that he is entitled under Minn.Stat. § 609.531, subd. 5a(b), to immediate repossession of the truck. But Stoltzman’s position undermines the purpose of forfeiture proceedings and the express legislative intent set forth in MinmStat. § 609.531, subd. la, which is in part to “deter crime.” The very fact that the legislature saw fit to target the specific crime of fleeing a police officer in a motor vehicle contradicts the result Stoltzman urges us to reach.

The only remaining question not directly addressed by the district court or the parties is the component of MinmStat. § 609.5312, subd. 4(a), requiring that the flight of a felon “endanger life or property.” Id. The district court did not make express findings on this point and Stoltz-man did not challenge the sufficiency of the district court’s findings. See Minn. R. Civ. P. 52.01 (requiring findings by district court in absence of jury).

But implicit in the district court’s findings is the conclusion that Stoltzman’s flight did endanger life or property.

Where it appears that the decisive issues have been decided by the [district] court without a jury, the reviewing court is not required to reverse simply because the [district] court might have gone into more detail in the explanation of its findings.

Peterson v. Johnston, 254 N.W.2d 360, 362 (Minn.1977) (citation omitted). Given that Stoltzman led police on a high-speed chase through the city of St. Paul, which ended only after Stoltzman crashed his truck into a utility pole, an implicit finding of danger to life or property is amply supported in the record and will not be reversed because the district court failed to make such an explicit finding.

Finally, Stoltzman claims that he is entitled to attorney fees because the state acted in bad faith when it sought to forfeit the truck and that the district court erred in declining to consider his motion. But the district court did not reach this issue because it held that Minn.Stat. § 609.5312, subd. 4, controlled. As such, this issue is not properly before us on appeal and we therefore decline to address it. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn.1988) (holding that we only review matters that were “presented and considered” by the district court). Stoltzman also argues that the state patrol should be precluded from taxing him for storage costs pending this appeal. But Stoltzman concedes that he failed to raise this issue before the district court. Accordingly, this issue is likewise not properly before us and we decline to address it. Id. Furthermore, Stoltzman failed to brief this issue. “Where [an appellant] asserts error, but fails to address the error in [one’s] appellate brief, the issue is deemed waived.” State v. Butcher, 568 N.W.2d 776, 780 (Minn.App.1997), review denied (Minn. Aug. 5, 1997) (citation omitted).

DECISION

The district court correctly interpreted the forfeiture statutes in holding that Minn.Stat. § 609.5812, subd. 4 (2000), specifically and exclusively governs forfeiture proceedings based on a charge of fleeing a police officer in a motor vehicle.

Affirmed.

      . Because the July 10, 2002, order was not a final appealable order, the parties arrived at a stipulation for the purposes of perfecting an appeal. See Minn. R. Civ.App. P. 103.03, subd. (a) (providing that an appeal is taken from the entry of a final or partial judgment).

      . “This revamped section 609.531 provides the general rules for all eight forfeiture statutes.” Id. The sections as revamped in 1988 are as follows: 609.5311 (1988 & 2000) deals with the forfeiture of property associated with controlled substances; 609.5312 (1988 & 2000) deals with the forfeiture of property “associated with certain specifically enumerated nondrug crimes”; 609.5313 (1988 & 2000) deals with "judicial foreclosure”; 609.5314 (1988 & 2000) deals with "administrative foreclosure of property seized in connection with controlled substances”; 609.5315 (1988 & 2000) deals with the "disposition of forfeited property”; 609.5316 (1988 & 2000) deals with "summary forfeitures”; 609.5317 (Supp. 1989 & 2000) deals with the "forfeiture of real property”; and 609.5318 (Supp.1993 & 2000) deals with the "forfeiture of property used in drive-by shootings." Id. at 239 n. 1 (emphasis added).


text:
    STATE of Minnesota, Respondent, v. Douglas Howard KRAMER, Appellant.
    No. C8-02-2054.
    Court of Appeals of Minnesota.
    Sept. 2, 2003.

      Paul Engh, Joseph Friedberg, Minneapolis, MN, for appellant.
    Mike Hatch, Attorney General, Thomas R. Ragatz, Steven H. Alpert, Assistant Attorneys General, St. Paul, MN, and David J. Hauser, Otter Tail County Attorney, Fergus Falls, MN, for respondent.
    Considered and decided by WRIGHT, Presiding Judge, LANSING, Judge, and PARKER, Judge.

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

   OPINION

WRIGHT, Judge.

On appeal from a conviction of third-degree criminal sexual conduct, appellant argues that the state failed to present sufficient evidence to rebut, his defense of mistake of age. Appellant also argues that the district court erred when, following an in camera review, it declined to require disclosure of documents that the state’s expert witness initially failed to produce for the district court’s review. We affirm.

FACTS

Appellant Douglas Kramer was charged with third-degree criminal sexual conduct, in violation of Minn.Stat. § 609.344, subd. 1(b) (2000). The following evidence was presented at trial. Kramer operated a resort in Otter Tail County. M.M., who was 15 years old on the offense date, lived down the road from Kramer and frequently visited the recreation room of the resort.

In November 2000, M.M. and Kramer were in the recreation room when Kramer began making sexual comments to M.M. M.M. testified that Kramer then physically forced her into the backseat of his vehicle located in the adjoining garage. Despite M.M’s resistance, Kramer removed M.M.’s clothing and told her “[i]f you scream, no one will hear you.” Kramer tried kissing M.M. on the lips and kissed her neck and chest. He also engaged in oral sex and in intercourse with M.M.

M.M. stated that, as a result of this incident, she was afraid of contracting AIDS or other sexually transmitted diseases and of becoming pregnant so she asked her mother to schedule an appointment for her at Planned Parenthood. M.M. visited Planned Parenthood and told an individual there that she had been raped by a neighbor. M.M. also reported her experience with Kramer at a group home during the summer of 2001.

After receiving a report that M.M. had been sexually assaulted, Detective Matt McGuire interviewed Kramer at his home in June 2001. Kramer admitted having oral sex and intercourse with M.M. McGuire testified that Kramer believed that the age of consent in Minnesota was 18, but McGuire did not ask Kramer how old he thought M.M. was.

M.M. testified that she was 15 when Kramer had sexual intercourse with her. She could not directly recall an occasion when she talked with Kramer about her age, but “there were several suggestions made.” M.M. discussed with Kramer her plans to apply to a high school, which she explained must be done the year before entering. But Kramer never asked M.M. how old she was, and she never discussed school activities with him.

Kramer testified that he was born on July 4, 1942, and admitted that he had sex with M.M. He stated that he thought M.M. was a senior in high school and that he believed she was 17 at the time they had sex. Kramer initially testified that he knew M.M. was still in school and probably had not turned 18. But he later testified that he thought she was older than 18.

Jane Van Sickle, a licensed psychologist who treated M.M., testified as an expert witness. Prior to trial, the district court ordered Van Sickle to produce M.M.’s psychological records. During Van Sickle’s testimony, she admitted that she had not produced all of the records. The district court ordered her to produce additional records for an in camera review. After the review, the district court concluded that the additional records did not “contain information material to [Kramerj’s guilt or innocence” and denied Kramer’s motion for production of these records. ■

After a bench trial, Kramer was convicted of third-degree criminal sexual conduct and received an executed sentence of 18 months’ imprisonment. This appeal followed.

ISSUES

I. Did the district court err in its ruling regarding the defense of mistake of age?

II. Did the district court abuse its discretion when it limited the disclosure of the complainant’s psychological records?

ANALYSIS

I.

Whether the district court has properly construed a statute is a question of law, which we review de novo. State v. Murphy, 545 N.W.2d 909, 914 (Minn.1996). The third-degree criminal-sexual-conduct statute provides, in pertinent part:

A person who engages in sexual penetration with another person is guilty of criminal sexual conduct in the third degree if any of the following circumstances exists:
(b) the complainant is at least 18 but less than 16 years of age and the actor is more than 24 months older than the complainant. In any such case it shall be an affirmative defense, which must be proved by a preponderance of the evidence, that the actor believes the complainant to be 16 years of age or older.

Minn.Stat. § 609.844, subd. 1 (2000)' (emphasis added). Kramer asserts that the district court erred as a matter of law when it did not require the state to rebut Kramer’s affirmative mistake-of-age defense with proof beyond a reasonable doubt. Essentially, Kramer asserts that he should not have been convicted because, once he raised the mistake-of-age defense, acquittal was warranted unless the state rebutted the defense with proof beyond a reasonable doubt.

Formerly unavailable as a defense to third-degree criminal sexual conduct, the mistake-of-age affirmative defense was added when the statute was amended in 1975. 1975 Minn. Laws ch. 374, § 5. To employ the affirmative defense of mistake of age, the defendant must show that it is more likely than not that he or she believed that the complainant was 16 or older. Minn.Stat. § 609.344, subd. 1(b). Kramer asserts that, once he raised the defense, the burden of persuasion shifted and the state was required to prove beyond a reasonable doubt that Kramer was not mistaken as to M.M.’s age. But Kramer cites no legal authority demonstrating that the burden of proving mistake of age operates differently from the statutory language. Kramer’s argument as to the quantum of evidence required to prove the defense contradicts the plain language of the statute. See id. (stating that the affirmative defense of mistake of age must be proved by a preponderance of the evidence). The mistake-of-age defense as provided in Minn.Stat. § 609.344, subd. 1(b), does not involve a shifting of the burden of proof to the state.

A due process analysis governs the allocation and nature of the burden of proof when a defendant raises an affirmative defense. The Due • Process Clause requires the state to prove every element of a crime charged beyond a reasonable doubt. Patterson v. New York, 432 U.S. 197, 204, 97 S.Ct. 2319, 2324, 53 L.Ed.2d

281 (1977); In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368 (1970); State v. Auchampach, 540 N.W.2d 808, 816 (Minn.1995). The burden to disprove the existence of any element of the crime charged may not be shifted to the defendant. Auchampach, 540 N.W.2d at 816 (quoting Mullaney v. Wilbur, 421 U.S. 684, 701-04, 95 S.Ct. 1881, 1891-92, 44 L.Ed.2d 508 (1975)). To do so would violate a defendant’s due process rights. Id. “Accordingly, if the mitigating circumstance or issue disproves or negates an element of the crime charged, the greatest burden a state may impose upon a defendant is that of shouldering the burden of production.” State v. Hage, 595 N.W.2d 200, 205 (Minn.1999). Under these circumstances, once a defendant has met the burden of production, “the burden of persuasion [] reverts to the state to prove beyond a reasonable doubt that the defense does not' exist.” State v. Myrland, 644 N.W.2d 847, 850 (Minn.App.2002) (citing Hage, 595 N.W.2d at 205), review denied (Minn.2002), cert. denied, 537 U.S. 1019 (2002). In sum, the burden reverts to the state only in cases where a defendant makes a prima facie showing that the mitigating circumstances disprove or negate an element of the crime charged. Hage, 595 N.W.2d at 205; see also State v. Charlton, 338 N.W.2d 26, 30-31 (Minn.1983) (holding that defendant had only the burden of production regarding claim of duress because otherwise he would be forced to disprove or negate Ms intent to commit robbery where intent was an element of the crime).

Conversely, the burden to prove an affirmative defense may remain with the defendant where the mitigating circumstances do not negate an element of the offense. “[OJnce the state proves each element of the crime beyond a reasonable doubt, it may impose on the defendant the burden of proving by a preponderance of the evidence that his or her conduct should be excused by some mitigating circumstances or issues.” Myrland, 644 N.W.2d at 850 (citing Hage, 595 N.W.2d at 207); Patterson, 432 U.S. at 209, 97 S.Ct. at 2326 (stating that, if the state recognizes a mitigating factor, it “may assure itself that the fact has been established with reasonably certainty”); Hage, 595 N.W.2d at 206-07 (holding that it was proper to require defendant to prove the defense of necessity by a preponderance of the evidence where doing so did not require defendant to disprove or negate any element of the charged offense of being in physical control of a motor veMcle while under the influence of alcohol).

Kramer raised the mistake-of-age defense in defending a charge of third-degree criminal sexual conduct. We, therefore, examine the elements of the crime charged to determine the nature of the burden and, consequently, wMeh party shoulders it. Hage, 595 N.W.2d at 206. The elements of the offense of third-degree criminal sexual conduct are (1) sexual penetration (2) with another person who is at least 13 but less than 16 years of age and (3) “the actor is more than 24 months older than the complainant.” Minn.Stat. § 609.344, subd. 1(b). That the actor knows the complainant is under 16 is not an element of Minn.Stat. § 609.344, subd. 1(b). None of the elements of the offense even addresses the knowledge or intent of the actor. The actor’s belief that the complainant is 16 or older, therefore, does not negate an element of the offense. See id. Accordingly, this affirmative defense is merely a mitigating circumstance that does not require the burden of proof to revert to the state to disprove the defense beyond a reasonable doubt. We conclude that the burden of persuasion with regard to the mistake-of-age affirmative defense was properly allocated to, and remained with, Kramer.

Kramer also contends that the state failed to rebut by proof beyond a reasonable doubt that he was mistaken regarding M.M.’s age. In light of our conclusion that the state bore no burden of disproving Kramer’s mistake-of-age defense, we construe the issue raised to be whether Kramer proved the affirmative defense of mistake of age by a preponderance of the evidence. Because this is akin to a challenge to the sufficiency of the evidence, our review is limited to a careful review of the evidence to determine whether, when the evidence is viewed in the light most favorable to the conviction, the fact-finder, giving due regard to the presumption of innocence and the state’s burden of proof, could reasonably find the defendant guilty. State v. Webb, 440 N.W.2d 426, 430 (Minn.1989). We recognize that the fact-finder is in the best position to evaluate the credibility of witnesses, and we assume that the state’s witnesses were believed. State v. Profit, 591 N.W.2d 451, 467 (Minn.1999).

The district court concluded that

[t]he totality of the evidence shows that Defendant at the time of the sexual activity did not know her age; and, that her age did not significantly matter to him at the time of the sexual activity. Defendant’s trial testimony that he believed [M.M.] was 17 or at least 16 is not credible. The affirmative defense where the burden is upon the Defendant to establish that it is more likely true than not true that he believed [M.M.] was 16 years of age or older at the time of the sexual activity has not been met.

The evidence supports the district court’s findings. When Kramer raised the affirmative defense of mistake of age, the burden of persuasion was properly allocated to Kramer, and he failed to meet his burden. Although Kramer did not ask M.M. her age, M.M. testified that several suggestions were made as to her age. M.M. stated that she felt that mentioning her plans to apply to an arts high school for students in 11th and 12th grade was a suggestion regarding her age because she “told him you apply the year before.” Kramer first testified that he believed M.M. was 17 and later testified that he believed she was over 18. It is the province of the fact-finder to determine the weight and credibility to be afforded the testimony of each witness. State v. Folkers, 581 N.W.2d 321, 327 (Minn.1998); State v. Bowles, 530 N.W.2d 521, 533 (Minn.1995); State v. Bliss, 457 N.W.2d 385, 390 (Minn.1990). “This is especially true where resolution of the case depends on conflicting testimony, because weighing the credibility of witnesses is the exclusive function of the [fact-finder].” State v. Pieschke, 295 N.W.2d 580, 584 (Minn.1980). As the sole judge of credibility, a fact-finder is free to accept part and reject part of a witness’s testimony. State v. Poganski, 257 N.W.2d 578, 581 (Minn.1977). We, therefore, defer to the district court’s credibility determination in resolving conflicting testimony. State v. Bias, 419 N.W.2d 480, 484 (Minn.1988). Our review of the record establishes that there is sufficient evidence to prove the elements of the offense beyond a reasonable doubt and that Kramer did not prove the affirmative defense of mistake of age by a preponderance of the evidence.

II.

Kramer next contends that the district court abused its discretion when it conducted an in camera review of records relating to M.M.’s treatment. A district court has broad discretion in ruling on discovery and evidentiary matters. State v. Wildenberg, 573 N.W.2d 692, 696 (Minn.1998).

[An] in camera [review] strikes a fairer balance between the interest of the privilege holder in having his confidences kept and the interest of the criminal defendant in obtaining all relevant evidence that might help in his defense. We believe that trial courts, who by training and experience are qualified for the task of determining matters of relevancy, are capable of determining what if any of the information in the records might help in the defense.

State v. Paradee, 403 N.W.2d 640, 642 (Minn.1987). In a criminal case, the district court also must be mindful of the defendant’s constitutional right to “be afforded a meaningful opportunity to present a complete defense.... ” Wildenberg, 573 N.W.2d at 697 (quoting California v. Trombetta, 467 U.S. 479, 485, 104 S.Ct. 2528, 2532, 81 L.Ed.2d 413 (1984)).

Kramer requests that we review the records produced at trial by Van Sickle to determine if the district court abused its discretion in denying Kramer’s request for their production. Specifically, Kramer asserts that we should look for

1. [e]vidence that mitigates Kramer’s . culpability[;]
2. [e]vidence of M.M.’s disclosures, specifically including the therapist’s thoughts, concerning her age[;]
3. [a]ny other evidence of M.M.’s disclosures that would be inconsistent with her other trial testimony[; and]
4. [e]vidence of M.M.’s disclosures which would indicate additional partners at or about November or December 2000, whose sex with her would cause a visit to Planned Parenthood, and whose conduct would explain M.M.’s psychological etiology.

From our careful review of these records, we conclude that the district court properly found that the records produced at trial did not contain information material to Kramer’s guilt or innocence. The district court did not abuse its discretion when it declined to release additional psychological records to Kramer after conducting an in camera review.

DECISION

The district court did not err when it concluded that Kramer was required to prove the affirmative defense of mistake of age by a preponderance of the evidence. The district court’s denial of Kramer’s request for the production of M.M.’s psychological records after an in camera review was not an abuse of discretion. The evidence is sufficient to support the conviction.

Affirmed.

      . The state argues that Kramer waived this issue because he conceded at trial that he-had the burden to prove that there was a mistake of age. Generally, we do not address issues not raised below. Roby v. State, 547 N.W.2d 354, 357 (Minn.1996). Because we cannot address Kramer’s challenge to the sufficiency of the evidence without first addressing the burden shouldered by each party, we must, for the purposes of our analysis, reach the merits of this argument. See Minn. R. Civ. App. P. 103.04 (authorizing appellate court to review any other matter as the interests of justice may require).

      . The burden of production is "[a] party's duty to introduce enough evidence on an issue to have the issue decided by the fact-finder[.]" Black's Law Dictionary 190 (7th ed.1999).

      . The burden of persuasion is "[a] party's duty to convince the fact-finder to view the facts in a way that favors that party.” Black's Law Dictionary 190 (7th ed.1999).


author: STONEBURNER, Judge.

text:
    STATE of Minnesota, Respondent, v. Tony Terral KELLY, Appellant.
    No. C1-02-1912.
    Court of Appeals of Minnesota.
    Sept. 2, 2003.

      Mike Hatch, Attorney General, and Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant County Attorney, St. Paul, MN, for respondent.
    John M. Stuart, Minnesota Public Defender, Marie Wolf, Assistant Public Defender, Minneapolis, MN, for appellant.
    Considered and decided by HARTEN, Presiding Judge, STONEBURNER, Judge, and PARKER, Judge.

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

   OPINION

STONEBURNER, Judge.

Appellant Tony Terral Kelly challenges his conviction of first-degree aggravated robbery. Appellant argues (1) that the prosecutor committed misconduct constituting plain error by making prejudicial insinuations not supported by evidence, and (2) that the district court should have suppressed the victim’s identification of appellant because the identification procedure was impermissibly suggestive and unreliable. Because the identification procedure was not impermissibly suggestive, the identification evidence was properly admitted. But because the prosecutor’s unfounded insinuations constitute plain error that deprived appellant of a fair trial, we reverse and remand for a new trial.

FACTS

In February 2002, Jamal Ahmed Hussein was beaten and robbed at an apartment building where he had been helping a friend move. Immediately after the incident, Hussein and his friends called the police, who arrived at the apartment building shortly afterward. Police interviewed Hussein, who described his attackers as three African-American males, one who was tall and had a muscular build, one who had “Rastafarian”-type hair, and one who had short hair. Hussein told the police that he had seen the men near apartment 321 before the attack. The police took Hussein to apartment 321 and knocked on the door. Appellant Tony Terral Kelly was sitting inside the apartment. The police asked him to step out into the hallway and asked Hussein if appellant was involved in the incident. Hussein indicated that he was. Appellant was arrested and charged with aggravated robbery.

At trial, Hussein testified that he had seen two of his attackers earlier in the evening and that they had asked if they could buy the gold necklace that he was wearing. Hussein said, “No.” One of the men had “Rastafarian” hair and the other was a tall, muscular African-American man. Later, when Hussein went back into the building because he had forgotten something, he saw these two men standing in front of apartment 321. After yelling at Hussein, the men attacked him. Hussein managed to get up and began to run down the hallway. A third man, later identified by Hussein at the scene as appellant, appeared in front of him and forced Hussein down to the ground. Hussein was punched several more times and one of the three men took his necklace. Hussein was able to escape, although an unknown number of his attackers followed. In court, Hussein identified appellant as the third man who had appeared in front of him and forced him to the ground during the attack.

The state’s case was based primarily on Hussein’s identification of appellant as one of his assailants. There were no other witnesses to the attack. Hussein’s necklace was never found.

Appellant testified at trial and denied participating in the assault and robbery. On cross-examination, the prosecutor, without objection, asked appellant:

Q. Do you recall on I believe it was Tuesday a group of spectators came in and had a seat in the back of this courtroom? Did you happen to see several African-American men come in and have a seat back here?
A. Yes.
Q. Would you describe one of them as having braids, as you described [when defining Rastafarian hair]?
A. Yes.
Q. Would you describe the other one as being a tall, muscular African-American male?
A. Yes.
Q. Did you know those men?
A. Yes.
Q. Now, Mr. Kelly, would you describe yourself as a — as black male with short, black hair?
A. Yes.

The prosecutor presented no evidence related to the two spectators. Appellant was found guilty of one count of aggravated robbery. This appeal followed.

ISSUES

I. Did the prosecution’s series of questions regarding men in the audience constitute plain error?

II. Did the district court err by failing to suppress Hussein’s identification of appellant as the third assailant?

ANALYSIS

I.

Generally, a defendant is deemed to have forfeited his right to have an error reviewed on appeal if he fails to object to the error at trial. State v. Quick, 659 N.W.2d 701, 717 (Minn.2003). But this court has discretion to review a previously unraised issue if it is plain error. Id. The elements of plain error are (1) that there has been error; (2) that this error is plain; and (3) that the error affected substantial rights of the appellant. State v. Chiller, 583 N.W.2d 736, 740 (Minn.1998); see also Minn. R.Crim. P. 31.02. Appellant argues that the prosecutor’s cross-examination implying that two spectators in the courtroom with whom he is acquainted were his unapprehended accomplices in the crime constitutes plain error. We agree.

[W]e have held that the state cannot be permitted to deprive a defendant of a fair trial by means of insinuations and innuendoes which plant in the minds of the jury a prejudicial belief in the existence of evidence which is otherwise inadmissible.

State v. Strommen, 648 N.W.2d 681, 688 (Minn.2002) (quotation omitted). “[I]t is unprofessional conduct to ask a question which implies a factual predicate which the examiner cannot support by; evidence, ... or intentionally to mislead the jury in argument as to inferences it may draw.” State v. White, 295 Minn. 217, 223, 203 N.W.2d 852, 857 (1973). And it is improper for prosecutors “to ask questions that are calculated to elicit or insinuate an inadmissible and highly prejudicial answer.” State v. Henderson, 620 N.W.2d 688, 702 (Minn.2001).

The state brashly argues that the questioning may have been calculated to test appellant’s ability to “identify a person based on a brief view of the pérson in the courtroom.” But the prosecutor’s cross-examination of appellant regarding the spectators was clearly constructed to imply a connection between appellant and Hussein’s unidentified assailants. The prosecutor not only asked appellant if his acquaintances matched Hussein’s descriptions of the other two attackers, but also asked appellant in the same sequence of questions, if he himself matched the victim’s description of the third attacker. Given the questions asked, it is disingenuous to suggest that the questions were merely designed to test appellant’s recall of people he had only briefly seen. The prosecutor’s cross-examination insinuated facts that were not supported by evidence and that were highly prejudicial.

Error is plain if the error is “clear” or “obvious.” Strommen, 648 N.W.2d at 688 (citations omitted). The state implies that the failure of the defense to object to the questioning at trial indicates that the conduct was not an obvious, or plain, error. But this is a circular analysis'. It is precisely because defense counsel failed to object that the issue is subjected to a plain-error analysis on appellate review. The rule against insinuating or making inferences not supported by evidence is well established. And it was clear that the state had not offered evidence during the presentation of its case that would support implicating the two spectators in the crime. It is plain that the prosecutor committed misconduct. .

Even if there is plain error, this court will not reverse unless the error affected the defendant’s substantial rights. Griller, 583 N.W.2d at 740. The required showing under the plain-error analysis that an appellant’s substantial rights have been affected is satisfied if the error was prejudicial and affected the outcome of the case. State v. Lindsey, 654 N.W.2d 718, 724 (Minn.App.2002). Error is prejudicial if there exists a reasonable likelihood that it had a significant effect on the jury’s verdict. Griller, 583 N.W.2d at 741; see also State v. Richardson 514 N.W.2d 573, 579 (Minn.App.1994) (holding that incidents (several) of prosecutorial misconduct constituted plain error because evidence of appellant’s guilt, though considerable, was not overwhelming).

Here, evidence of appellant’s guilt rests entirely on his presence in an apartment near where Hussein saw the other two attackers and on Hussein’s identification. There is a reasonable likelihood that the jury drew inferences, from the improper questions that affected the outcome of the case. We conclude that the prosecutor’s misconduct affected appellant’s substantial rights and deprived him of a fair trial. We therefore must reverse appellant’s conviction and remand for a new trial. See Quick, 659 N.W.2d at 717 (stating that when plain error is established, reviewing court may correct the error if the fairness, integrity, or public reputation of the judicial proceeding is seriously affected).

II.

Although we are remanding for a new trial based on prosecutorial misconduct, we still must address appellant’s assertion that Hussein’s out-of-court identification of him as one of the attackers should have been suppressed and that the in-court identification should not have been permitted. Whether identification evidence is admissible depends on the reliability of the identification. State v. Taylor, 594 N.W.2d 158, 161 (Minn.1999). “[T]he reviewing court may independently review the facts and determine, as a matter of law, whether the evidence need be suppressed.” Id. (citation omitted).

[T]he test in determining the admissibility of in-court testimony allegedly tainted by suggestive identification procedures is whether, under the totality of the circumstances, the procedures created a substantial likelihood of irreparable misidentification.

State v. Oksanen, 311 Minn. 553, 249 N.W.2d 464, 465 (1977) (quotation omitted). And this court uses a two-part test to determine whether pretrial identification evidence is admissible. Taylor, 594 N.W.2d at 161; see also Simmons v. United States, 390 U.S., 377, 381, 88 S.Ct. 967, 969-70,19 L.Ed.2d 1247 (1968). “The first inquiry focuses on whether the procedure was unnecessarily suggestive.” State v. Ostrem, 535 N.W.2d 916, 921 (Minn.1995) (citation omitted). Under the second prong of the test, even if the identification evidence is suggestive, it may be admissible if the totality of the circumstances establishes that the evidence was reliable. Id. .

Appellant argues that the district court should have suppressed evidence of Hussein’s identification of appellant at the scene, as well as his identification of appellant at trial, because the identification was based on an impermissibly suggestive one-person “show-up.” We disagree. Although we recognize that a one-person show-up is, by its very nature, suggestive, the identification in this case was not a one-person show-up identification. And even if the identification could be characterized as a one-person show-up, it was not unnecessarily suggestive. See Taylor, 594 N.W.2d at 161-62 (holding that a one-person show-up is not per se unnecessarily suggestive). At the scene of the crime, Hussein led police officers to the apartment where he saw two of his attackers prior to the attack. Appellant was asked to step out of the apartment and was identified by Hussein as a participant in the crime. The identification in this case is unlike identifications that we have found to be unnecessarily suggestive, when the police singled out an individual based on a description, brought the individual back to the witness, and presented the suspect to the witness in handcuffs. See State v. Anderson, 657 N.W.2d 846, 851 (Minn.App.2002); see also Taylor, 594 N.W.2d at 162 (distinguishing the facts of the case by stating, “This is not a case where the police singled [defendant] out from the general population based on a description given to them by a victim, and then proceeded to present him to the victim, in handcuffs, for identification in a one-person show-up”). We agree with the district court that the identification procedure in this case was not unnecessarily suggestive and that the evidence was properly admitted, including Hussein’s in-court identification of appellant as his assailant.

DECISION

The prosecutor committed prosecutorial misconduct by asking questions of appellant during cross-examination that implied prejudicial facts not in evidence. The misconduct constitutes plain error that deprived appellant of a fair trial, entitling him to a new trial. The identification procedure was not impermissibly suggestive, therefore evidence of the identification was properly admitted.

Affirmed in part, reversed in part, and remanded.


author: MINGE, Judge.

text:
    Raymond SCOTT, Appellant, v. FOREST LAKE CHRYSLER-PLYMOUTH-DODGE, Respondent.
    No. C7-03-368.
    Court of Appeals of Minnesota.
    Sept. 2, 2003.

      ' Thomas J. Lyons, Jr., John H. Goolsby, Little Canada, MN, for ¿ppellant.
    Gregory J. Johnson, Klay C. Ahrens, Johnson Provo-Petersen, L.L.P., St. Paul, MN, for respondent.
    Considered and decided by MINGE, Presiding Judge, HARTEN, Judge, and STONEBURNER, Judge.
   OPINION

MINGE, Judge.

. Appellant challenges summary judgment dismissing his claims for intentional damages and limiting him to damages and attorney fees for an unintentional violation of Minnesota Motor Vehicle Retail Installment 'Sales Act (MMVRISA) under Minn. Stat. § 168.71 (2002). Because appellant vehicle purchaser does not claim that respondent auto dealer’s deliberate failure to timely provide a copy of the sales agreement signed by the auto dealership caused or could cause any actual damages or harm, because the substantial statutory damages for intentional violations of MMVRISA are to deter practices that might cause harm to consumers, and because the district court did not abuse its discretion in determining allowable attorney fees, we determine that the remedy for respondent’s technical violation of MMVRISA is limited to that allowed for unintentional violations of MMVRISA, and we affirm the district court’s summary judgment order but modify the award of attorney fees.

FACTS

In November 1995, appellant Raymond Scott traded in a 1991 Dodge Caravan for a 1995 Dodge Caravan at Forest Lake Chrysler-Plymouth-Dodge (Forest Lake Chrysler). This was not the first vehicle Scott had purchased from Forest Lake Chrysler. As he had done with his previous vehicle purchases, Scott financed the vehicle through the dealership and was provided with a retail installment contract containing the purchase price, applicable fees, interest rate, number of monthly payments, the amount of each monthly payment, and the total amount to be paid over time. A Forest Lake Chrysler representative did not sign the contract at the time of the transaction, but Scott received an unsigned copy of the agreement.

Scott filed several actions in both the United States district court and in Minnesota district court based on Forest Lake Chrysler’s failure to deliver a signed copy of the agreement and other alleged violations of MMVRISA. The U.S. District Court action was dismissed; two of the state actions were appealed to the Minnesota Court of Appeals, and one of those was further appealed to the Minnesota Supreme Court. See Scott v. Forest Lake Chrysler-Plymouth-Dodge, No. 3-96-671 (D.Minn. July 3, 1997); Scott v. Forest Lake Chrysler-Plymouth-Dodge, 637 N.W.2d 587 (Minn.App.2002); Scott v. Forest Lake Chrysler-Plymouth-Dodge, 598 N.W.2d 713 (Minn.App.1999), rev’d, 611 N.W.2d 346 (Minn.2000). At issue in those actions was the use of a conditional delivery agreement instead of a retail installment contract, the nonsigning of the contract by Forest Lake Chrysler, and Forest Lake Chrysler’s intent. Appellant does not allege that he suffered, and he concedes that he did not suffer any loss, damage, inconvenience, or risk.

On May 24, 2002, the issue of Forest Lake Chrysler’s intent came before the district court. The court defined intentional and unintentional, determined that Forest Lake Chrysler’s actions were unintentional, and granted Forest Lake Chrysler’s motion for summary judgment. The court ordered Forest Lake Chrysler to pay Scott $50 as a statutory penalty.

The issue of attorney fees was reserved and came on for hearing on September 27, 2002. Scott requested attorney fees in the amount of $116,022.45; the court awarded attorney fees in the amount of $4,063.47. This appeal followed.

ISSUES

I. Is a vehicle purchaser entitled to the remedies provided for intentional violations of the Minnesota Motor Vehicle Retail Installment Sales Act when the act that violated the statute is intentional but is technical in nature and no actual damage or harm is claimed?

II. Did the district court err by awarding attorney fees and costs, of $4,063.47?

ANALYSIS

Scott appeals the district court’s grant of summary judgment in favor of Forest Lake Chrysler. On appeal from a summary judgment determination, this court asks two questions: (1) are there any genuine issues of material fact; and (2) did the lower court err in the application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990). This court accords the district court great deference and only sets aside the district court’s factual findings if those findings are clearly erroneous. Fletcher v. St. Paul Pioneer Press, 589 N.W.2d 96, 101 (Minn.1999). But this court is not bound by the district court’s decision on a purely legal issue. Frost-Benco Elec. Ass’n v. Minn. Pub. Utils. Comm’n, 358 N.W.2d 639, 642 (Minn.1984).

I.

The MMVRISA requires every retail installment contract to (1) be in writing; (2) contain all the agreements of the parties; and (3) be signed by both the buyer and the seller. Minn.Stat. § 168.71(a)(1) (2002). In 1995, when Scott purchased the vehicle, it was the customary practice of dealerships to give the buyer an unsigned copy of the contract. This was because only certain persons at a dealership were authorized to sign the contracts on behalf of the dealership, and these authorized persons were not always available to sign the contract at the time of sale.

The requirements for the elements of the retail installment contract were established by the Minnesota Motor Vehicle Retail Installment Sales Act, which was enacted in 1957. 1957 Minn. Laws ch. 266, § 6. The statute stated, both in 1957 and in 1995, when appellant purchased the vehicle, that “every retail installment contract shall be in writing, ... shall be signed by the retail buyer and seller, and a copy thereof shall be furnished to such retail buyer at the time of the execution of the contract.” Minn.Stat. § 168.71(a)(1) (1957 & 1994). At the time Scott purchased his vehicle, dealerships customarily provided purchasers with unsigned carbon copies of the contract, despite the statutory language requiring the dealership to provide the customer with a signed copy. In 1996, in response to several consumer lawsuits, the Minnesota legislature amended Minn. Stat. § 168.71(a)(1). 1996 Minn. Laws ch. 414, art. 1, § 33. The amended statute gives the dealership seven days from delivery of the vehicle to provide the buyer with a copy of the contract signed by both the buyer and the seller. Minn.Stat. § 168.71(a)(1) (1996 & 2002). In addition, the amendment allowed dealerships to cure the lack of delivery of any contract executed before the amendment, and not yet paid in full, by providing a signed copy of such contract to the buyer within 120 days of August 1, 1996. Id. Forest Lake Chrysler sent a letter to Scott’s attorney, stating that upon the request of Scott or his attorney, Forest Lake Chrysler would deliver a signed copy of the document. Neither Scott nor his attorney made a request for the signed document, and Forest Lake Chrysler did not provide a copy of the signed contract. In the previous appeals brought by this appellant, this court and the Minnesota Supreme Court determined that the 1995 contract met all requirements of the MMVRISA save one:, appellant was not provided with a copy of the contract signed by the seller within the 120-day grace period. At issue here is whether the district court erred by determining that the failure to provide appellant with a signed copy of the contract was an unintentional failure to comply with the statute.

An unintentional failure to comply with the statute allows the buyer to recover, as liquidated damages “three times the amount of any time price differential charged in excess of the amount authorized by section 168.66 to 168.77 or $50, whichever is greater, plus reasonable attorneys’ fees.” Minn.Stat. § 168.75(c) (2002). An intentional failure to comply is treated more harshly; the buyer has the right to recover as liquidated damages, “the whole of the contract due and payable, plus reasonable attorneys’ fees.” Minn.Stat. § 168.75(b) (2002). MMVRISA includes definitions of certain terms, but “intentional” and “unintentional” are not among those defined in the Act. Minn.Stat. §§ 168.011, .274 (2002).

The district court noted that the terms “intentional” and “unintentional” were not defined in the Act and that they needed to be defined in order to characterize Forest Lake Chrysler’s actions. Relying on the civil jury instruction guide, the Restatement (Second) of Torts, and the legislative intent of the statute, the court determined that the

legislature intended to define intentional violation as one in which there is proof of conduct substantially certain to result in harm, disadvantage to, or deceit of, the customer or to achieve an inequitable result ... the statute defines intentional as acting with the intent to deceive, or to achieve an inequitable result, or to take advantage of, or harm the customer.

The court determinéd that Scott had failed to show that Forest Lake Chrysler acted with malicious intent or a purposeful intent to deceive and that Scott was not damaged or harmed by the failure to provide a signed copy of the agreement. The district court therefore determined that as a matter of law Forest Lake Chrysler’s actions were unintentional, awarded Scott $50, and granted summary judgment accordingly.

We determine that there are three options to bring a conclusion to this long, litigious saga. Our first option is to determine that the meaning of intentional or unintentional should be determined by applying Minn.Stat. § 645.08(1) (2002) (words in statutes “are construed according to rules of grammar and according to their common and approved usage”). Since it is clear that Forest Lake Chrysler deliberately decided to not send out a signed copy of the contract, its actions appear to be “intentional” according to the common dictionary definition of that word. That strict-construction approach would require us to reverse and remand this casé with instructions to the district court that this violation is an intentional violation and that the court should award the damages required by Minn.Stat. § 168.75(b). The problem with this option is that the resulting damages would be “the whole of the contract due and payable,” which would shock the conscience and violate the presumed legislative intent. In addition, the litigation connected with this matter has already gone on for seven years; a remand further protracts a final resolution and serves to increase the already hefty attorney fees and consume additional judicial resources.

Our second option is to uphold the previously summarized definition by the district court of “intentional failure” and thereby affirm the district court’s decision. But this option ignores Minnesota law requiring that “words and phrases are construed according — to their common, and approved usage.” Minn.Stat. § 645.08(1): Furthermore, upholding the district court’s strained definition of “intentional” may come back to haunt claimants in other situations by raising the level of proof needed to sustain a claim for intentional damages.

Our third option is to hold that a technical violation without any claim of loss, damage, inconvenience, or risk does not justify the buyer’s receipt of the substantial, intentional damages. While this option also ignores the plain meaning of “intentional failure to comply,” it recognizes the purpose of the statute as repeatedly articulated by the Minnesota Supreme Court. Our supreme court determined that “the plain purpose of the MMVRISA is to require disclosure to consumers of the cost of credit extended to them, including sale price, amount of down payment, insurance charges, and finance charges.” Scott v. Forest Lake Chrysler-Plymouth-Dodge, 611 N.W.2d 346, 351 (Minn.2000) (quotation omitted); see also O’Brien v. Phillips Motors Excelsior, Inc., 288 Minn. 183, 185, 179 N.W.2d 158, 160 (1970) (stating that the “plain purpose of the provision is to inform the installment buyer of the cost of the credit extended to him”); Van Asperen v. Darling Olds, Inc., 254 Minn. 62, 70, 93 N.W.2d 690, 696' (1958) (stating that part of the reason for the adoption of the MMVRISA was “to protect the purchasers of automobiles from the activities of a few individuals who had been guilty of inequitable practices in particular situations”).

The third option is the best choice. The legislature did not intend that a technical violation of the statute would be used to enrich the buyer. Here the buyer did not incur any damages or harm. He purchased the vehicle, knew its cost, knew the cost of the financing, paid those costs, and drove that vehicle. By holding that a technical violation of the statute without any claim of loss does not justify the buyer’s receipt of intentional damages, we avoid an award of significant damages to an appellant who does not even claim that any harm has occurred.

Truth in Lending eases in other states provide some support for the third option. In some cases, the courts have held that technical errors in a contract which do not undermine congressional policy are not actionable. See, e.g., Chem. Bank v. Mayo, 121 Misc.2d 781, 469 N.Y.S.2d 315, 318 (1983) (citing Jumbo v. Nester Motors, 428 F.Supp. 1085, 1087 (D.Ariz.1977)). Other cases have held that if the contract was in “substantial compliance” with the rules, there is not an intentional violation. See Chem. Bank, 469 N.Y.S.2d at 318 (citing cases).

We hold that a violation of the MMVRI-SA without a claim of loss, damage, or harm to the consumer is limited to the damages awarded for an unintentional violation of the statute.

II.

Appellant also contends that the district court erred by awarding attorney fees and costs of only $4,063.47 when appellant requested $116,022.45 in attorney fees and costs. “On review, this court will not reverse a trial court’s award or denial of attorney fees absent an abuse of discretion.” Becker v. Alloy Hardfacing & Eng’g Co., 401 N.W.2d 655, 661 (Minn.1987) (citation omitted). The district court shall allow reasonable costs to a prevailing party in a district court action. Benigni v. County of St. Louis, 585 N.W.2d 51, 54 (Minn.1998). The district court “retains discretion to determine which party, if .any, qualifies as a prevailing party.” Id. at 54-55 (quotation omitted).

Here, appellant initially brought seven claims against Forest Lake Chrysler. Appellant lost on six of the claims. The district court determined that based on an unintentional failure to comply with the statute, and an award of $50 to appellant, the appellant was neither “victorious on the merits with respect to any of the violations specifically alleged in the complaint,” nor did appellant allege in the complaint a right to recover under an unintentional violation of the statute. Thus, the court determined that appellant had “not met his burden of establishing entitlement to the award sought.” The court’s calculation of reasonable attorney fees excluded $2,245.32 for legal research on the grounds that such a charge should be included in the charges for the attorneys’ time. The district court then divided the remaining requested fees by seven for the number of violations asserted in the original complaint, then divided by two because there was no recovery for any violation specifically alleged in the original complaint, and divided by two again. The resulting figure was $4,063.47, and the district court awarded that amount because it was more fairly commensurate with the $50 damage award.

It is clear that “reasonable” attorney fees can be awarded. Minn.Stat. § 168.75 (2002) (awarding reasonable attorney fees as part of the remedy for a statutory violation). The district court determines the reasonableness of the fees, and this court upholds the district court’s determination unless the district court abuses its discretion. We agree with the district court’s exclusion of the $2,245.32 in legal research fees, and we agree with the initial division by seven. However, a further discount is more difficult. We note that every aspect of this litigation has been strenuously contested, that the violation in question persisted and was effectively repeated after the legislature had established a window period and a method to cure past violations, and that the statute is clearly designed to cover attorney fees. Accordingly, we conclude that the district court should have stopped with excluding legal research and awarded attorney fees of $16,253.88, plus $50 in nominal statutory damages for a total of $16,303.88. Due to the protracted nature of this proceeding and in the interest of judicial economy, we do not remand for yet further hearings.

DECISION

Because appellant makes no claim of damages or harm from a car dealer’s violation of MMVRISA, appellant is limited to damages for unintentional violations of that act. The district court’s definition of intentional is modified, and its calculation of attorney fees is modified.

Affirmed as modified.