author: SCHUMACHER, Judge.

text:
    STATE of Minnesota, Respondent, v. James Paul SECORD, Appellant.
    No. CX-99-1721.
    Court of Appeals of Minnesota.
    June 20, 2000.
    Review Denied Sept. 13, 2000.

      Mike Hatch, Attorney General, St. Paul; and Amy Klobuchar, Hennepin County Attorney, Linda M. Freyer, Assistant County Attorney, Minneapolis, for respondent.
    John A. Fabian, Diane M. Odeen, Nichols Raster & Anderson, Minneapolis, for appellant.
    Considered and decided by SCHUMACHER, Presiding Judge, HARTEN, Judge, and SHUMAKER, Judge.
   OPINION

SCHUMACHER, Judge.

After his conviction of gross misdemean- or possession of child pornography, James Paul Secord appeals the district court’s refusal to suppress material seized' from his residence pursuant to a search warrant. We reverse.

FACTS

On October 22, 1998, Secord took his car to a Firestone garage for servicing. While the car was being inspected and repaired, a Firestone mechanic, Gary Voit, noticed that one of the taillights was not working. Voit called Secord for permission to fix the light, and Secord agreed. To fix the taillight, Voit opened the car’s hatchback and saw what he thought was a box of child pornography videotapes, as well as some soft-cover child pornography books. Voit showed his manager, Randy Petersen, and another employee, Timothy Hanlin, what he had found. They did not remove any of the materials from the ear. Secord picked up his car later that afternoon.

On October 28, 1998, Sergeant Bernie Martinson of the Sex Crimes Unit of the Minneapolis Police Department received a phone call from a Hennepin County probation officer. The probation officer told Martinson that a friend who worked at the Firestone garage had told him about suspected child pornography in Secord’s car. That same day, Martinson called the garage and talked to Peterson, who told him that while servicing Secord’s car, several employees saw what they thought was child pornography in the car. Martinson also spoke with Hanlin, who gave a description of Secord and his clothes.

Based on this information, Martinson applied for and received a search warrant to search Secord’s car and residence. Martinson executed the search warrant on October 29, 1998. He seized the box of videotapes and the soft-cover books from Secord’s car. Although some of the videotape titles suggested that they might be child pornography, none of them contained child pornography or photographic representations of sexual conduct involving minors within the meaning of the relevant statutes. The soft-cover books were not pornographic.

Martinson and another investigator also searched Secord’s residence, where they seized pornographic tapes and magazines that did not contain child pornography or photographic representations of sexual conduct involving minors within the meaning of the relevant statutes. But Secord told the officers that he had used his computer to download “pictures of juveniles posing in sexual positions and having sex with adults.” The officers seized the pictures.

Secord moved to suppress the materials seized from his residence on the grounds that the warrant was not supported by probable cause, did not establish a sufficient nexus to his residence to support a search of the residence, and contained misrepresentations. Although the district court found that the affidavit’s uses of the word “pedophiles” were misrepresentations because there was- no evidence to suggest that Secord was a pedophile, the court found that even disregarding those sections of the affidavit, the remaining portions established probable cause to search both Secord’s car and his residence.

Secord’s motion to suppress the evidence seized at his residence was denied. He submitted to a bench trial on stipulated facts and was found guilty. He was sentenced to 365 days in the county correctional facility, with the sentence stayed pending compliance with certain terms of probation. He now appeals the district court’s refusal to suppress the material seized at his residence pursuant to the search warrant.

ISSUE

Did the district court err in determining the warrant was supported by probable cause and thus refusing to suppress the evidence seized from Secord’s residence?

ANALYSIS

Both the United States and Minnesota Constitutions protect citizens from unreasonable searches and seizures. See U.S. Const. amend. IV; Minn. Const. art. I, § 10. The court’s task on appeal is to “ensure that the issuing judge had a ‘substantial basis’ for concluding that probable cause existed.” State v. Souto, 578 N.W.2d 744, 747 (Minn.1998) (citation omitted). To determine whether the district court had a substantial basis for finding probable cause, we look to the “totality of the circumstances.” State v. Wiley, 366 N.W.2d 265, 268 (Minn.1985). Under this test, the

issuing judge “is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.”

State v. Zanter, 535 N.W.2d 624, 633 (Minn.1995) (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983)). In determining whether probable cause exists, both the district court and the reviewing court may consider only the information in the application for the search warrant. State v. Kahn, 555 N.W.2d 15, 18 (Minn.App.1996). We pay “great deference” to the district court’s determination of probable cause supporting a search warrant. Gates, 462 U.S. at 236, 103 S.Ct. at 2331; State v. Jannetta, 355 N.W.2d 189, 194 (Minn.App.1984), review denied (Minn. Jan. 14, 1985). But see State v. Gabbert, 411 N.W.2d 209, 212 (Minn.App.1987) (“deference to the magistrate * * * is not boundless”) (quoting United States v. Leon, 468 U.S. 897, 914, 104 S.Ct. 3405, 3416, 82 L.Ed.2d 677 (1984)). Doubtful or marginal cases should be “ ‘largely determined by the preference to be accorded to warrants.’ ” State v. Albrecht, 465 N.W.2d 107, 109 (Minn.App.1991) (quoting Massachusetts v. Upton, 466 U.S. 727, 734, 104 S.Ct. 2085, 2089, 80 L.Ed.2d 721 (1984)).

Secord argues that the warrant was not supported by probable cause because the information in the supporting affidavit did not establish sufficient nexus to his residence to support a search of the residence. The only connection in the affidavit between the materials the Firestone employees saw in Secord’s car and Se-cord’s residence is Martinson’s assertions that on the basis of his training and experience he knows that “pedophiles” “keep,” “maintain,” and “collect” such materials. But the court ruled that it would not consider those portions of the affidavit because there was no evidence to support the implied assertion that Secord was a pedophile. The state did not challenge this ruling by filing a notice of review, nor does it argue in its brief that Martinson’s training or experience supports a nexus between the materials seen in Secord’s car and Secord’s residence sufficient to support a search of that residence. As a result, it may not argue that Martinson’s conclusory statements based on his training and experience support finding probable cause for the warrant. See City of Ramsey v. Holmberg, 548 N.W.2d 302, 305 (Minn.App.1996) (issue decided adversely to respondent not properly before court absent notice of review), review denied (Minn. Aug. 6, 1996); Melina v. Chaplin, 327 N.W.2d 19, 20 (Minn.1982) (issues not briefed on appeal are waived).

Instead of relying on Martinson’s training and experience, the state argues that reasonable inferences from the nature of the materials and surrounding circumstances support a nexus to Secord’s home. Observing that the district court “is entitled to draw common-sense and reasonable inferences from the facts and circumstances” in an affidavit, State v. Eggler, 372 N.W.2d 12, 15 (Minn.App.1985), review denied (Minn. Sep. 19, 1985), the state argues that since the videotapes were likely to be used at Secord’s residence, a sufficient nexus to that residence existed to support probable cause for a warrant to search the residence.

Although the question whether the district court can infer a nexus to a residence based on the inference that videotapes are likely to be used or stored at home appears to be one of first impression in Minnesota, other courts presented with the argument have rejected it:

In this case, a magistrate could infer from the affidavit that [the defendant] would be unlikely to view or store the video tapes at his place of employment. A further possible inference was that, after removing the tapes from his workplace, [the defendant] would take the tapes home to view or store. [The defendant’s] home, however, was but one of an otherwise unlimited possible sites for viewing or storage. The [postal inspector’s] affidavit provided no basis to either limit the possible sites or suggest that [the defendant’s] home was more likely than the otherwise endless possibilities. As a consequence, the possible inference that [the defendant] would take the tapes home, in and of itself, is insufficient to provide a substantial basis for concluding there was probable cause to believe the contraband would be in [the defendant’s] home at the time the search was to take place.

United States v. Rowland, 145 F.3d 1194, 1205 (10th Cir.1998). On similar facts, the Third Circuit reached the same result:

Although it may have been reasonable for the magistrate judge to infer that [the defendant] would not view the videotape at the storage facility, there was no basis for finding that he would view it at his home as opposed to some other location.

United States v. Loy, 191 F.3d 360, 366 (3rd Cir.1999), cert. denied, — U.S. -, 120 S.Ct. 1429, 146 L.Ed.2d 319 (2000).

The state, however, relies on Minnesota cases in which the absence of evidence that drug dealers kept drugs elsewhere was one factor supporting the nexus necessary for a search of their residences:

•No evidence suggested that appellant stored drugs in a separate place or obtained drugs from another source before making the sale to the dealer; Such indications would have weakened the inference of a nexus between the controlled buy and appellant’s residence. See Novak v. State, 349 N.W.2d 830, 832-33 (Minn.1984) (affidavit supported inference that marijuana would be found in appellant’s residence following sale that did not take place at that house, where there was no evidence that appellant stored marijuana elsewhere or obtained it from others before making sale).

State v. Bynum, 579 N.W.2d 485, 487 (Minn.App.1998), review denied (Minn. Aug. 18, 1998).

But the cases on which the state relies are distinguishable. In both Bynum and Novak, the information available to the district court included the fact that the suspects were drug dealers. In fact, the Novak court specifically pointed this out:

We attach considerable significance to the information indicating that petitioner was a drug wholesaler. The fact that petitioner dealt in large quantities increased the likelihood that police would find marijuana in a search of his residence.

Novak, 349 N.W.2d at 832-33.

When the district court is informed that a suspect is a drug dealer, it is reasonable to infer that the suspect keeps a supply of drugs to sell. In the absence of any contrary information, it is reasonable to infer that that supply is kept at the suspect’s residence. But in this case, that reasoning does not work, because there is nothing in the affidavit that indicates that Secord had more pornography anywhere, much less at his residence. Had the informants seen Secord sell pornography to someone, By-num and Novak would arguably have been relevant. But without any facts to indicate that the pornography seen in Secord’s car was part of a larger supply, there was no reasonable basis to infer that more pornography would be found at Secord’s home.

The state suggests that the large quantity of pornography seen in Secord’s car made it likely that more would be found at home, but does not suggest why this is so. The state also says “it is reasonable to infer that [Secord] was using the car to transport the pornography to his residence,” but does not explain why that inference is any more reasonable than the inference that Secord was using the car to transport the pornography somewhere else.

Under the totality of the circumstances presented in the affidavit, we conclude the district court did not have a substantial basis to believe that child pornography would be found at Secord’s residence. The warrant therefore was, not properly supported by probable cause-. We need not reach Secord’s additional arguments.

DECISION

The district court erred by refusing to suppress the child pornography seized from Secord’s residence.

Reversed.

      . The affidavit supporting the application for a search warrant included the following paragraph:
      Your affiant also wishes to seize any handwritten books or diaries ■ which will describe sexual acts with children. It is known that pedophiles will collect such data on computer discs and software, and then correspond with other known pedophiles in order to further their collection of sexual erotica.


source: Caselaw Access Project

author: KALITOWSKI, Judge.

license: Public Domain

text:
    STATE of Minnesota, Respondent, v. Randall James THOLE, Appellant.
    No. C5-99-2078.
    Court of Appeals of Minnesota.
    July 11, 2000.

      Mike Hatch, Attorney General, St. Paul, MN; and James C. Backstrom, Dakota County Attorney, Kevin P. Shea, Assistant County Attorney, Dakota County Judicial Center, Hastings, MN, for respondent.
    John M. Stuart, State Public Defender, Ann McCaughan, Assistant State Public Defender, Minneapolis, MN, for appellant.
    Considered and decided by KLAPHAKE, Presiding Judge, KALITOWSKI and PORITSKY, Judges.

       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

KALITOWSKI, Judge.

Following his conviction of use of a motor vehicle without consent, appellant Randall James Thole challenges the district court’s order for restitution. Appellant claims the district court: (1) erred by ordering restitution for damages not caused by the offense for which he was convicted; and (2) abused its discretion in valuing the vehicle loss at $2,500.

FACTS

On February 10, 1998, appellant Randall James Thole went to his ex-girlfriend’s house, where he allegedly assaulted her before taking her 1988 Chevrolet Spectrum without her consent. After appellant departed, the victim noticed that her purse and cell phone were missing. Appellant subsequently abandoned the vehicle, which was found more than two months later.

Evidence was presented that the 1988 Spectrum, was in good mechanical condition prior to the theft but would barely run when the victim recovered it. Its interior was filthy and strewn with debris and someone appeared to have poured sugar in the gas tank. The victim and her husband purchased $720 in parts and made sufficient repairs to render the vehicle operable, and she was later able to trade it in for $790.

Prior to recovery of the vehicle, appellant was charged with motor vehicle use without consent in violation of Minn.Stat. § 609.52, subd. 2(17) (Supp.1997), and domestic assault in violation of Minn.Stat. § 609.2242, subd. 1 (1996). He pleaded guilty to the charge of motor vehicle use without consent and the domestic assault charge was dismissed. As part of his plea agreement appellant agreed to make restitution in an amount to be determined by the corrections department.'

In her restitution claim to the Dakota County Victim Restoration Program, the victim claimed a loss of $2,500 for her car. She obtained this figure by calling her credit union and' requesting the vehicle’s Blue Book value. According to the Restitution Investigation Report prepared by Dakota County Corrections, the 1998 Blue Book value of a 1988 Spectrum in good to excellent condition was $2,400 to $3,225.

The victim also requested restitution for certain personal belongings that had been in the car at the time of the theft. In addition, she asserted a claim for her stolen purse and cell phone, the hospital bill she incurred for treatment of'injuries from the assault, and her expenses for changing her locks and repairing a broken window.

Based on its investigation, the corrections department assessed the victim’s total losses at $4,305.95, and the district court entered an order for restitution in that amount. Appellant filed a motion to vacate the order and a supporting affidavit, claiming that he had done no damage to the vehicle and that “the victim [was] not damaged in the amount alleged.” At the hearing, the district court refused to consider appellant’s objections to any aspect of the restitution award other than the value of the vehicle because he had not raised them with specificity in his motion and affidavit. Following the hearing, the district court issued its final order for restitution in the amount of $4,250.

ISSUES

1. Did appellant waive his right to challenge items in the restitution award by failing to comply with the affidavit requirement of Minn.Stat. § 611A.045, subd. 3 (1996)?

2. Did the district court abuse its discretion in ordering restitution of $2,500 for the victim’s vehicle?

ANALYSIS

Under Minnesota law, when an offender is convicted of a crime, the victim has a right to restitution including, but not limited to, “out-of-pocket losses resulting from the crime.” Minn.Stat. § 611A.04, subd. 1(a) (Supp.1997). While the district court has broad discretion in granting restitution, the record must provide a factual basis for the amount awarded by showing the nature and amount of the losses with reasonable specificity. State v. Keehn, 554 N.W.2d 405, 407 (Minn.App.1996), review denied (Minn. Dec. 17, 1996). Deciding whether a particular item of restitution fits within the statutory definition is a question of law and is fully reviewable by the appellate court. See In re Welfare of D.D.G., 532 N.W.2d 279, 280-81 (Minn.App.1995), review denied (Minn. Aug. 30,1995).

I.

Appellant contends the district court erred by awarding the victim restitution for her stolen purse and cell phone, her hospital bill, and the cost of changing her locks and repairing her window because these additional losses were unrelated to his unauthorized use of her car.

Under the victim restitution statute, when challenging a restitution request an offender has the initial burden of production:

At the sentencing, dispositional hearing, or hearing on the restitution request, the offender shall have the burden to produce evidence if the offender intends to challenge the amount of restitution or specific items of restitution or their dollar amounts. This burden of production must include a detailed sworn affidavit of the offender setting forth all challenges to the restitution or items of restitution, and specifying all reasons justifying the dollar amounts of restitution which differ from the amounts requested by the victim or victims.

Minn.Stat. § 611A.045, subd. 3 (1996) (emphasis added). The statute imposes two burdens on the offender: The burden of pleading and the burden of production. Under the statute, the affidavit is both the sole vehicle by which the offender can meet the burden of pleading, and an essential element of the offender’s case required to meet the burden of production. The requirement that the offender fully plead his or her position in the affidavit is further illustrated by the legislature’s insistence that the affidavit be “detailed.” Once an offender raises a proper challenge to the restitution order, the prosecution bears the burden of proving the propriety of the restitution by a preponderance of the evidence. Id.

In his motion to vacate the restitution order, appellant indicated that he was contesting “the appropriateness of the restitution in its entirety with respect to the vehicle that was alleged to have been stolen in this matter.” (Emphasis added.) In his accompanying affidavit, appellant stated that he had not damaged the vehicle other than normal wear. He did not object to any other element of the restitution order, and has made no claim that he did not receive proper notice of the victim’s claimed losses.

Under the plain language of the statute, a valid dispute arises only after an offender meets the threshold burden of raising a specific objection by affidavit. Until a dispute exists, the district court need not determine whether restitution is justified by a preponderance of the evidence, as the general standards for ordering restitution are contained in a preceding subdivision. See Minn.Stat. § 611A.045, subd. 1(a) (Supp.1997) (directing the district court to determine restitution by considering “the amount of -economic loss sustained by the victim as a result of the offense” and “the income, resources, and obligations of the defendant”). Because appellant’s written motion and affidavit only addressed the value of the vehicle, the district court correctly refused to consider any challenges to other items included in the restitution order.

Appellant does not dispute that he failed to raise his additional objections with specificity, but argues that this court may review the restitution order because it represents plain error. We disagree.

Under Minn.R.Crim.P. 31.02, an appellate court may consider a plain error not previously brought to the attention of the district court if the error affects substantial rights. To establish plain error, an appellant must show that a district court’s ruling (1) was error, (2) was plain, and (3) affected his substantial rights. State v. Griller, 583 N.W.2d 736, 740 (Minn.1998)

Appellant’s argument misapprehends- the nature of a “plain error.” The doctrine exists to permit appellate review of trial errors, even though a defendant has forfeited the right to such review by failing to object at trial. Id. A “plain error” is one that affects a defendant’s ability to have a fair trial. Rairdon v. State, 557 N.W.2d 318, 323 (Minn.1996) (noting appellate review;'is available for plain errors affecting substantial rights “if those errors had the effect of depriving the defendant of a fair trial”). The test for determining “plain error” is whether there exists “a reasonable likelihood that any error substantially affected the verdict.” State v. Glidden, 455 N.W.2d 744, 747 (Minn.1990). See also State ex rel. Ras mussen v. Tahash, 272 Minn. 539, 551, 141 N.W.2d 3, 11 (1965) (defining plain error as any error where failure to reverse would “perpetuate a substantial and essential injustice in the sense that as a result an innocent man may have been convicted”).

Because this case involved a guilty plea rather than a jury verdict, the district court’s ruling did' not affect appellant’s ability to have a fair trial. Moreover, the district court’s ruling was not in error, but was instead consistent with the plain language of Minn.Stat¡ § 611A.045, subd. 3. Finally, in light of the statutory language, we decline to create an exception that would permit an offender to circumvent his own failure to comply with mandatory procedural requirements. "

II.

Appellant claims the record does not provide an evidentiary basis for the district court’s award of $2,500 as restitution for the vehicle. We disagree. The value falls within the range contained in the restitution report. Contrary to appellant’s assertion, the restitution reports are part of the district court file and are properly before this court on appeal. The record on appeal consists of “[t]he papers filed in the trial court, the exhibits, and the transcript of the proceedings.” Minn. R.Civ.App.P. 110.01.

The court heard evidence that the vehicle had some pre-existing damage to the back seat but was in sound mechanical condition before the theft; that it was barely operable after its recovery; and that its trade-in value was roughly equivalent to the amount the victim spent to return the car to a working condition. We reject appellant’s assertion that the valuation was flawed because the vehicle’s trade-in value exceeded the cost of repairs by $65. Restitution does not require a strict netting of the costs against benefits received. State v. O’Brien, 459 N.W.2d 131, 134 (Minn.App.1990).

DECISION

Because appellant failed to challenge any aspect of the order for restitution other than the valuation of the victim’s vehicle, under Minn.Stat. § 611A.045 he is barred from challenging other items of restitution. The district court did not abuse its discretion in valuing the vehicle loss at $2,500.

Affirmed.

      . Because this crime occurred in early 1998, we refer to the version of the restitution statute in effect at that time. Section 611A.045, subdivision 3, was amended in 1999 to impose an additional time limitation on an offender’s right to challenge a restitution request. See Minn.Stat. § 611A.045, subd. 3(b) (Supp.1999). Neither this nor any other subsequent amendments to the statute would change the outcome of this case.


author: DAVIES, Judge.

text:
    Mark HARMAN, Respondent, v. HEARTLAND FOOD COMPANY, et al., Appellants.
    No. C5-99-1805.
    Court of Appeals of Minnesota.
    July 18, 2000.

      J. Brian O’Leary, O’Leary and Moritz, Chartered, Springfield, for respondent.
    James H. Malecki, Mark S. Ullery, Gis-lason & Hunter, L.L.P., Mankato, for appellants.
    Considered and decided by DAVIES, Presiding Judge, PETERSON, Judge, and HALBROOKS, Judge.
   OPINION

DAVIES, Judge.

After a jury trial, appellants Heartland Food Company and Tim Johnson were found liable on respondent Mark Harman’s claims for defamation and wrongful interference with a contractual relationship. They challenge the trial court’s denial of their motion for JNOV. Appellants argue that (1) Johnson’s statement about Har-man’s skills was non-actionable and (2) any interference with Harman’s employment relationship was justified by Heartland Food’s right to protect its own legitimate business interests. We agree and reverse.

FACTS

The Interference With Contract Claim

In 1989, Harvest Land entered into a seven-year contract to produce turkeys for Swifb-Eckrich, Inc., a turkey processor. The contract required Swift-Eckrich to pay medication expenses incurred by Harvest Land in growing the turkeys; it also gave Swift-Eckrich authority to oversee Harvest Land’s turkey operations. Respondent Mark Harman managed Harvest Land’s turkey production division.

In the spring of 1992, Swifb-Eckrich assigned its interest in the Harvest Land contract to Heartland Food (appellant). Appellant played a more active role in overseeing Harvest Land’s turkey growing operation than had Swift-Eckrich, sending a service person to inspect the barns regularly and making recommendations on technical matters. Appellant’s president testified that proper and efficient flock management by the grower is important to the processor’s profitability and that appellant was losing money on its contract with Harvest Land. Due to differing flock-management philosophies, tensions developed between appellant’s personnel and Har-man.

The most significant dispute concerned medication and vaccination. Johnson, appellant’s procurement director, testified that Harman refused to follow appellant’s medication and vaccination programs and failed to obtain appellant’s consent before administering medications. Johnson testified that Harman tended to use medication for every problem that came along, even though medication is not always an appropriate solution. Harman admitted that on occasion he administered medication despite appellant’s refusal to approve and that he stopped following appellant’s vaccination program because he felt it was not working.

Johnson testified that appellant’s personnel met with Harman and his staff several times to try to resolve the medication issues. Johnson also met with Harvest Land’s general manager and assistant general manager several times to explain appellant’s frustration with the way Har-man was managing Harvest Land’s farms.

In November 1994, Johnson sent written guidelines for medicating and vaccinating turkeys to Harvest Land. But Harman concedes that he did not comply with these guidelines because he did not believe the contract gave appellant the authority to enforce them. Harman continued to medicate turkeys without appellant’s approval and also failed to comply with a vaccination requirement in the guidelines.

Johnson testified that appellant continued to incur substantial losses on Harvest Land’s flocks and that he believed those losses were partially .attributable to Har-man’s medication and vaccination policies. A discussion with Harman in June or July of 1996 left Johnson with the impression that Harman would continue not to cooperate with appellant’s policies.

A month or two later, appellant sent Harvest Land a message proposing — or requiring — that Harman not be involved in turkey raising for appellant, its parent, or two other affiliated companies. Allegedly, as a result of appellant’s request — or demand — Harman was' transferred from Harvest Land’s turkey division to a non-management position in an affiliated company. As a result of the transfer, Har-man’s salary was reduced from $52,000 per year to $36,000 per year and he no longer was involved with turkey production, his specialty.

The Defamation Claim

Harman’s defamation claim is based on a statement appellant Johnson made to Dale Tauer, who also had a contract to grow turkeys for appellant Heartland Food Company. Johnson told Tauer that “Harman knew nothing about raising turkeys” and that if Tauer did not stay away from Harman, Tauer’s. contract with Heartland would be in jeopardy. Tauer testified that he did not take the statement seriously, but as simply a comment arising from Johnson’s anger at that time. Tauer testified that he knew Harman was an experienced and competent turkey grower who he occasionally asked for advice on medication issues.

ISSUES

I. Did the trial court err in denying appellants’ motion for. JNOV on Harman’s defamation claim?

II. Did the trial court err in denying appellahts’ motion for JNOV on Harman’s claim for intentional interference with a contractual relationship?

ANALYSIS

When the trial court considers a motion for JNOV it must determine whether, viewing the evidence in the light most favorable to the nonmoving party, the verdict is manifestly against the entire evidence or whether despite the jury’s findings of fact the moving-party is entitled to judgment as a matter of law. Therefore the standard of review is de novo. Where JNOV has been denied by the trial court, on appellate review the trial court must be affirmed, if, in the record, there is any competent evidence reasonably tending to sustain the verdict. Unless the evidence is practically conclusive against the verdict, this court will not set the verdict aside. The evidence must be considered in the light most favorable to the prevailing party and an appellate court must not set the verdict aside if it can be sustained on any reasonable theory of the evidence.

Pouliot v. Fitzsimmons, 582 N.W.2d 221, 224 (Minn.1998) (quotations and citations omitted).

I.

To be defamatory, a statement must be communicated to someone other than the plaintiff, must be false, and must tend to harm plaintiffs reputation in the community. Stuempges v. Parke, Davis & Co., 297 N.W.2d 252, 255 (Minn.1980). Words may be divided into three categories: (1) those that cannot possibly have a defamatory meaning; (2) those that are reasonably susceptible to a defamatory meaning; and (8) those that are clearly defamatory on their face. Church of Scientology of Minn. v. Minnesota State Med. Ass’n Found., 264 N.W.2d 152, 155 (Minn.1978). The question of whether a claimed defamatory meaning is reasonably conveyed by the language used is a question of law for the court. Utecht v. Shopko Dep’t Store, 324 N.W.2d 652, 653 (Minn.1982).

Whether a defamatory meaning is conveyed is dependent upon how an ordinary person understands “the language used in the light of surrounding circumstances.” Gadach v. Benton County Co-op. Ass’n, 236 Minn. 507, 510, 53 N.W.2d 230, 232 (1952). In deciding whether words bear a non-actionable meaning, the words “must be construed as a whole without taking any word or phrase out of context, or placing undue emphasis upon any one part.” Morey v. Barnes, 212 Minn. 153, 156, 2 N.W.2d 829, 831 (1942).

Some persons, in. a forced attempt at colorful expression, indulge in ill-advised use of inaccurate terminology; and an article written in that manner may or may not be libelous, depending on the occasion and circumstances and how it is understood by those reading it.

Id. (holding jury must decide whether use of word “brothel” to describe plaintiffs home is defamatory in light of context of article). “Epithets or adjectives can constitute defamation if they imply a specific type of reprehensible conduct.” Weissman, 469 N.W.2d at 473; see, e.g., Uhlman v. Farm, Stock & Home Co., 126 Minn. 239, 241, 148 N.W. 102, 102 (1914) (describing plaintiffs as a “precious bunch of crooks” and “as straight as a rail fence and as honest as Ananias” was libelous).

Applying these principles, we hold that, as a matter of law, Johnson’s statement to Tauer that “Harman knew nothing about raising turkeys” did not have an actionable defamatory meaning in the context in which it was uttered. Both Johnson and Tauer knew that Harman had extensive experience in turkey growing. Tauer testified that he knew that Harman was a competent turkey grower and did not believe Johnson’s statement was intended to provide information about his competence. Tauer explained that Johnson was angry when he made the statement. Given the context, including Johnson and Tauer’s knowledge of Harman’s experience, the statement could not reasonably have been interpreted as defamatory. It was, therefore, mere rhetorical hyperbole and non-actionable.,

II.

The elements of a cause of action for wrongful interference with a contractual relationship are:

(1) the existence of a contract; (2) the alleged wrongdoer’s knowledge of the contract; (3) intentional procurement of its breach; (4) without justification; and (5) damages.

Kjesbo v. Ricks, 517 N.W.2d 585, 588 (Minn.1994) (quoting Furlev Sales and Assoc. v. North American Automotive Warehouse, Inc., 325 N.W.2d 20, 25 (Minn.1982)). The issue in this case relates to the fourth element, justification.

The policy underlying the tort of wrongful interference with a contractual relationship is to protect “the expectations of contracting parties against frustration by outsiders who have no legitimate social or economic interest in the contractual relationship.'” Kasparian v. County of Los Angeles, 38 Cal.App.4th 242, 262, 45 Cal.Rptr.2d 90, 100 (Cal.Ct.App.1995) (emphasis added).

An action for interference with contract does not lie where the alleged interferer has a legitimate interest, economic or otherwise, in the contract or expectancy sought to be protected and employs no improper means.
⅜ ⅜ ⅜ ⅜
For purposes of this tort, improper means are those that are independently wrongful such as threats, violence, trespass, defamation, misrepresentation of fact, restraint of trade or any other wrongful act recognized by statute or the common law. Moreover, the improper means must be a part of what procures the breach.

Birdsong v. Bydalek, 953 S.W.2d 103, 112-13 (Mo.Ct.App.1997) (quotations and citations omitted).

Appellant had a legitimate economic interest in the profitability of its contract with Harvest Land. Harman argues, however, that appellant’s interference with his employment relationship with Harvest Land was motivated by malice towards him, not by economic concerns. But even if there is a degree of malice, when a defendant has a legitimate economic interest to protect, a plaintiff must show that the breach of plaintiffs contract with the third party resulted at least in part from the defendant’s commission of an independent tort or other illegality. See id. at 113 (improper means are acts recognized by statute or common law as wrongful); Kerr Constr. Paving Co., Inc. v. Khazin, 961 S.W.2d 75, 80-81 (Mo.Ct.App.1997) (independently actionable conduct constitutes improper means); see also Texas Beef Cattle Co. v. Green, 921 S.W.2d 203, 211 (Tex.1996) (“[improper motives cannot transform lawful actions into actionable torts”; when a party has a legal right to act, it may do so with impunity, regardless of motive).

Defamation was the only independent illegality alleged. But Harman’s defamation claim, based on a statement to Tauer, fails as a matter of law. The statement is also causally unrelated to the interference claim. His wrongful interference claim fails.

Finally, Harman argues that appellant’s demand that Harman not be involved with raising turkeys for appellant did not occur until after the contract between Harvest Land and appellant had been renewed. Harman claims appellant, therefore, had no legitimate interest to protect when it interfered with Harman’s employment relationship with Harvest Land. But whether the interference occurred before or after the contract had been renewed is irrelevant, for even if the contract had already been renewed, appellant had a right to police Harvest Land’s performance during the renewal period. And, absent a response to its complaints about Harman’s implementation of that performance, appellant could have opted to terminate the contract for unsatisfactory performance and have had its dispute with Harvest Land — and Harman — resolved in a breach-of-contract action.

Having determined that Harman, as a matter of law, failed to establish a claim for wrongful interference with a contractual relationship, we do not reach the issue of whether the trial court erred in instructing the jury on justification.

DECISION

The trial court erred in denying appellants’ motion for JNOV on Harman’s claims of defamation and wrongful interference with a contract.

Reversed.

      . Because the speech at issue involved a private plaintiff and a private issue, we analyze this issue under principles of Minnesota common law. We do not believe that the First Amendment provides any protection to appellants in this private defamation action. See Weissman v. Sri Lanka Curry House, Inc., 469 N.W.2d 471, 472-73 (Minn.App.1991) ("constitutional safeguards for public persons and public issues have not been extended to private plaintifiy'private issue defamation actions”).

      . We also note that there was no showing of damage arising from Johnson’s statement to Tower.

      . Appellants argue that Johnson's statement to Tauer that “Harman knew nothing about raising turkeys” cannot support a defamation claim because it was protected opinion. The argument is attractive, but our review of Minnesota common law does not support such a fact/opinion distinction in a private plaintiff case. See Weissman, 469 N.W.2d at 473.


author: EDWARD J. PARKER, Judge.

text:
    Wanda Lea LEMKE, as Trustee for the Heirs and Next of Kin of Kinscem TETA, Respondent, v. Dean Lawrence BROOKS, Appellant.
    No. C1-00-187.
    Court of Appeals of Minnesota.
    July 18, 2000.
    Review Granted Sept. 27, 2000.

      Ronald I. Meshbesher, Daniel J. Boivin, Meshbesher & Spence, Ltd., and Ronald H. Usem, Craig D. Greenberg, Huffman, Usem, Saboe, Crawford & Greenberg, P.A., Minneapolis, for respondent.
    Paul A. Banker, Lindsay G. Arthur, Jr., Arthur, Chapman, Kettering, Smetak & Pikala, P.A., and James M. Genia, Lock-ridge Grindal Ñauen, P.L.L.P., Minneapolis, for appellant.
    Considered and decided by TOUSSAINT, Chief Judge, RANDALL, Judge, and PARKER, Judge.

       GILBERT, J., took no part in the consideration or decision of this case.

   OPINION

EDWARD J. PARKER, Judge.

Dean Brooks appeals from the district court order denying his motion to dismiss for lack of subject-matter jurisdiction, contending respondent was first required to exhaust tribal court remedies. We affirm.

FACTS

Decedent Kinscem Teta and Brooks were the parents of a young child, Alicia. Brooks and his daughter are enrolled members of the Shakopee Mdewakanton Sioux (Dakota) Community, a federally recognized Indian tribe. In December 1997, Brooks shot decedent while on Indian land, and her body was found in Minneapolis in January 1998. In November 1998, Brooks pled guilty to second-degree murder and was sentenced to 36 years in prison. Brooks has since petitioned for postconviction relief, contending he was incompetent to stand trial and enter a guilty plea by reason of mental illness.

Respondent Wanda Lemke is decedent’s mother and Alicia’s grandmother. She sued Brooks in Hennepin County District Court, as trustee for decedent’s heirs and next of kin, to recover damages for her daughter’s wrongful death pursuant to MinmStat. 573.02, subd. 1 (1998).

Brooks moved to dismiss the lawsuit for lack of subject-matter jurisdiction, contending that Lemke was first required to exhaust tribal court remedies. Lemke moved to strike Brooks’s affirmative defense of lack of subject-matter jurisdiction. The district court denied the motion to dismiss and granted Lemke’s motion to strike. Brooks appeals.

ISSUE

Must Lemke exhaust tribal remedies before the state court may assume jurisdiction?

ANALYSIS

Subject-matter jurisdiction is a question of law that this court will review de novo. Becker County Welfare Dep’t v. Bellcourt, 453 N.W.2d 543, 544 (Minn.App.1990), review denied (Minn. May 23, 1990).

“Indian tribes retain ‘attributes of sovereignty over both their members and their territory.’ ” California v. Cabazon Band of Mission Indians, 480 U.S. 202, 207, 107 S.Ct. 1083, 1087, 94 L.Ed.2d 244 (1987) (citation omitted). “[A]bsent a grant of federal authority, state courts have no jurisdiction over Indians, Indian tribes or other Indian entities.” Gavle v. Little Six, Inc., 555 N.W.2d 284, 289 (Minn.1996) (citations omitted), cert. denied, 524 U.S. 911, 118 S.Ct. 2075, 141 L.Ed.2d 151 (1998); see Williams v. Lee, 358 U.S. 217, 222-23, 79 S.Ct. 269, 272, 3 L.Ed.2d 251 (1959) (holding that absent specific authority, state lacked jurisdiction in action by non-Indian against Indian for transaction occurring on reservation).

Congress, however, has granted Minnesota, as well as five other states, broad criminal and limited civil jurisdiction over almost all Indian country -within the state. Public Law 280 provides that Minnesota has

jurisdiction over civil causes of action between Indians or to which Indians are parties which arise in the areas of Indian country listed * * * to the same extent that such State has jurisdiction over other civil causes of action, and those civil laws of such State that are of general application to private persons or private property shall have the same force and effect within such Indian country as they have elsewhere within the State * * *.

28 U.S.C. 1360(a) (1994). Indian country includes “all land within the limits of any Indian reservation under the jurisdiction of the United States Government * * *.” 18 U.S.C. 1151(a) (1994). Although this definition of Indian country applies to federal criminal law, the Supreme Court has applied it “to questions of civil jurisdiction.” DeCoteau v. District County Court, 420 U.S. 425, 427 n. 2, 95 S.Ct. 1082, 1084 n. 2, 43 L.Ed.2d 300 (1975). Minnesota state courts and tribal courts have concurrent jurisdiction over some causes of action arising in Indian country. Gavie, 555 N.W.2d at 290-91; Granite Valley Hotel Ltd. Partnership v. Jackpot Junction Bingo & Casino, 559 N.W.2d 135, 137 (Minn.App.1997), review denied (Minn. Apr. 15, 1997). It is undisputed that Brooks, an Indian, shot decedent, a non-Indian, in Indian country.

Brooks contends that the district court should have dismissed this action based on Lemke’s failure to exhaust her remedies in tribal court. He relies on the exhaustion doctrine as applied to federal and tribal courts, which generally provides that the tribal court should decide jurisdiction in the first instance. Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9, 19, 107 S.Ct. 971, 978, 94 L.Ed.2d 10 (1987). If the tribal court finds it has jurisdiction, it may then' decide the merits of the case. Id. Tribal appellate court review may then follow. Matsch v. Prairie Island Indian Community, 567 N.W.2d 276, 278 (Minn.App.1997), review denied (Minn. Sept. 18, 1997). Only thereafter may federal courts conduct even limited review of the jurisdictional question. Iowa Mut., 480 U.S. at 19, 107 S.Ct. at 978. There are a few instances in which a party need not exhaust tribal remedies before going to federal court, including when

an assertion of tribal jurisdiction “is motivated by a desire to harass or is conducted in bad faith,” or where the action is patently violative of express jurisdictional prohibitions, or where exhaustion would be futile because of the lack of an adequate opportunity to challenge the court’s jurisdiction.

National Farmers Union Ins. Cos. v. Crow Tribe of Indians, 471 U.S. 845, 856 n. 21, 105 S.Ct. 2447, 2454 n. 21, 85 L.Ed.2d 818 (1985) (citation omitted).

Different considerations arise when considering the issue as applied to state and tribal courts. Unlike federal courts, state courts do not have jurisdiction to conduct even limited review of tribal court decisions. Matsch, 567 N.W.2d at 279. Further, the exhaustion requirement concerns comity rather than subject-matter jurisdiction. Klammer v. Lower Sioux Convenience Store, 535 N.W.2d 379, 380 (Minn.App.1995) (citing Iowa Mut., 480 U.S. at 16 n. 8, 107 S.Ct. at 976 n. 8).

In determining whether the state district court should assume concurrent jurisdiction, our supreme court has indicated the guiding federal principle is deference. Gavle, 555 N.W.2d at 291. Abstention by a state court is appropriate when the exercise of state court jurisdiction “would undermine the authority of the tribal courts” or “infringe on the right of Indians to govern themselves.” Id. at 292 (citing Williams, 358 U.S. at 223, 79 S.Ct. at 272). A non-Indian patron suing a tribal business involving on-reservation activity must exhaust his tribal remedies, notwithstanding state court jurisdiction under Public Law 280, because the lawsuit involved an issue of sovereign immunity. Klammer, 535 N.W.2d at 383-84. But where the state district court could resolve contract, and apparent authority issues without interfering in matters, of tribal self-government, it need not defer to the jurisdiction of the tribal court. Granite Valley, 559 N.W.2d at 137-38.

Lemke does not seek damages against a tribe, tribal official, or tribal business, or implicate the sovereign immunity of the tribe. Therefore, the principles expressed in Gavie do not require the state district court to defer to the tribal court. Gavle, 555 N.W.2d at 289.

Also of significance is the subject matter of the law. Id. Under Public Law 280, state civil laws of “general application to private persons” have the same force and effect throughout the state, in both Indian and non-Indian country. 28 U.S.C. 1360(a). Civil laws of general application include areas such as “contracts, tort, marriage, divorce, insanity, descent, etc.,” but would not include the state’s sovereign powers, such as the power to tax. Bryan v. Itasca County, 426 U.S. 373, 384 n. 10, 96 S.Ct. 2102, 2108-09 n. 10, 48 L.Ed.2d 710 (1976).

Brooks asserts that under State v. Stone, 572 N.W.2d 725 (Minn.1997), the state may not assume jurisdiction. But Stone addressed whether state traffic laws could be enforced against Indians on reservation -land, focusing on the issue of whether the laws were regulatory or prohibitory. Id. at 729-30. In contrast, the wrongful death statute, Minn.Stat. 573.02, subd. 1, is not a regulatory law, but a civil law of general application to private persons, which has the same effect and.application on the reservation as elsewhere. Bryan, 426 U.S. at 384 n. 10, 96 S.Ct. at 2108-09 n. 10. Consequently, the district court properly denied Brooks’s motion to dismiss for lack of subject-matter jurisdiction.

DECISION

The decision of the district court denying the motion to dismiss based on lack of subject-matter jurisdiction is affirmed. -

Affirmed.

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

      . Red Lake Reservation is explicitly excluded from this provision. 28 U.S.C. § 1360(a) (1994). In addition, the state "retroceded all criminal jurisdiction for the Bois Forte Indian Reservation * * * back to the federal government” in 1973. State v. Stone, 572 N.W.2d 725, 728 n. 3 (Minn.1997).

      . Lemke disputes on appeal the district court’s determination that decedent’s death occurred on the reservation. Because Lemke did not file a notice of review, we cannot address this issue. City of Ramsey v. Holmberg, 548 N.W.2d 302, 305 (Minn.App.1996), review denied (Minn. Aug. 6, 1996).


author: PORITSKY, Judge.

text:
    EAGLE CREEK TOWNHOMES, LLP, Respondent, v. CITY OF SHAKOPEE, Appellant.
    No. C4-99-2010.
    Court of Appeals of Minnesota.
    July 18, 2000.
    Review Denied Sept. 13, 2000.

      Phillip R. Krass, Terrance J. Wagener, Krass Monroe, P.A., Bloomington, for respondent.
    James J. Thomson, Jr., Kennedy & Graven, Chartered, Minneapolis, for appellant.
    Considered and decided by SHUMAKER, Presiding Judge, HUSPENI, Judge and PORITSKY, Judge.

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

   OPINION

PORITSKY, Judge.

Appellant City of Shakopee challenges both respondent property-owner Eagle Creek’s standing to appeal a special assessment and a district court order reducing the special assessment levied against Eagle Creek’s property. Because we conclude that Eagle Creek has standing and that the reduction of the special assessment was not based on an erroneous interpretation of the law, we affirm.

FACTS

In 1994, appellant City of Shakopee (the city) approved project 1994-10 for public improvements, including streets, sewer, water, and other utilities, to property then owned by PACT Credit River Road LLP (PACT). In September 1997, the city approved a conditional use permit (CUP) for James Development to build a 96-unit apartment complex on the property, which had been zoned R-3 (multi-family residential). In October 1997, project 1994-10 was completed; in November 1997, the city levied a $388,730 special assessment against the property for the improvements. PACT paid, but appealed the assessment.

In April 1998, PACT entered into a purchase agreement with J.F. Johnson General Development Corporation (Johnson Development). The purchase agreement provided that

[Johnson Development] shall pay all assessments whether levied or pending as of the Closing Date, as well as the installments of special assessments for the year of closing. For purposes of this Agreement, a “pending” special assessment means any work or project which, as of the Date of Closing, has been directed or authorized by any governmental authority, the cost of which will be, but has not yet been certified to and included in the real property taxes payable with respect to the Property, and specifically includes, without limitation thereto, the assessment in the amount of $ unknown.
* * * *
This Agreement shall inure to the benefit of, and be binding upon, the administrators, successors and assigns of the parties hereto.

In June 1998, PACT’S attorney wrote to the city:

PACT Inc. has entered into negotiations with [Johnson Development] regarding the purchase of [the] property. My client has advised me that should said purchase proceed, [Johnson Development] does not wish to proceed with the special assessment appeal.
The purpose of this letter is to inform all parties that upon closing of this sale, PACT Inc. agrees to dismiss, with prejudice, its assessment appeal with regard to all land it sells to [Johnson Development], its successors or assigns. PACT Inc. further agrees to take such other and further actions as may be reasonably necessary to effectuate that assessment appeal dismissal.

(Emphasis added.) But PACT never transferred legal title of the property to Johnson Development; the sale never closed.

In July 1998, PACT did sell the property. It transferred its rights and interest in the assessment appeal to The Stuart Corporation (Stuart) and moved to substitute Stuart in the assessment appeal. The city opposed the motion, arguing that it was a third-party beneficiary to Johnson Development’s agreement with PACT to dismiss the special-assessment appeal. The district court granted PACT’S motion and substituted Stuart.

Stuart then sold the property to respondent Eagle Creek Townhomes, LLP (Eagle Creek), to whom Stuart transferred its rights and interest in the assessment appeal. Stuart successfully moved the district court to substitute Eagle Creek in the assessment appeal, although the city again opposed the motion, alleging third-party-beneficiary status. The city now challenges Eagle Creek’s standing on this ground.

In August 1998, construction began on Eagle Creek Townhomes. Eagle Creek’s expert, Robert Strachota, testified at trial that he appraised the property before and after the improvement by using the “discounted cashflow model.” He described the model as measuring

the present value of the Eagle Creek project as the combined value of the raw land and the return on the development as of August 1998. The project value quantifies what a buyer/investor would pay the developer in August 1998 assuming that the developer would be reimbursed for his out-of-pocket acquisition of the raw land, arranging for the timely construction of the project, and delivering the finished product to the buyer at a later date. The buyer purchases the right to receive the finished project and then assumes all debt (permanent financing) and remaining equity requirements of Eagle Creek once completed.
⅝ ⅜ ⅜ ⅜
Therefore, after' careful consideration of the many factors influencing [market] value, it is our opinion that the Eagle Creek Townhomes project has a market value (combined land value and present value of development profit), before and after Project 1994-10, as of August 1998, of:
Value Before Project 1994-10: $1,280,000
Value After Project 1994-10: $1,040,000
Estimated Increase (Decrease) in Value: ($240,000)
Indicated Net Benefit to Subject: ($240,000)
Based on the values of the Eagle Creek project before and after Project 1994-10, we conclude there is no special benefit flowing to the subject property from Project 1994-10. In fact, the value of Eagle Creek actually decreases by $240,000 in comparison to what could have been achieved by developing it independently of Project 1994-10.

Strachota concluded, however, that “[t]here [had been] a net benefit to the development as a result of the public improvement project of $85,735” because the project “reduced the costs of development.”

The district court, in accord with Stra-chota’s appraisal, found that the improvements had increased the value of the property by $85,735, declared the original $388,730 assessment invalid, and ordered the city to refund the difference, with interest, to Eagle Creek. The city moved for a new trial and amended findings. The motion was denied and this appeal followed.

ISSUES

1. Did Eagle Creek have standing to pursue the special-assessment appeal?

2. Did the district court err by admitting Eagle Creeks appraisal?

ANALYSIS

1. Eagle Creek’s Standing

Where the facts are undisputed, standing is a legal question, which is reviewed de novo on appeal. Joel v. Wellman, 551 N.W.2d 729, 730 (Minn.App.1996), review denied (Minn. Oct. 29, 1996). The facts here are not disputed.

The city argues that Eagle Creek lacks standing to pursue the assessment appeal because the city was an intended third-party beneficiary of the unconsummated purchase agreement whereby Johnson Development agreed to dismiss the special-assessment appeal upon closing of the sale. But this precondition was never met. The record does not support the city’s claim that PACT sold the property to Johnson Development. Neither the purchase agreement nor the letter from PACT’S attorney evinces a completed sale to Johnson. No evidence indicates that PACT ever transferred legal title of the property to Johnson Development; moreover, it was PACT, not Johnson Development, that subsequently transferred the property to Stuart.

Because the sale never closed, the city’s argument that PACT and Johnson Development intended the city to be a third-party beneficiary is irrelevant. Eagle Creek is not bound by their agreement and has standing to pursue the assessment appeal.

2. Eagle Creek’s Appraisal

The district court has broad discretion in ruling whether or not to admit an appraisal and a reviewing court will not overturn that ruling unless it is based on an erroneous interpretation of the law or it constitutes an abuse of discretion. See Buzick v. City of Blaine, 505 N.W.2d 51, 53 (Minn.1993). The city argues that the district court committed an error of law by admitting evidence of Strachota’s appraisal and by relying upon it.

Minn.Stat. § 429.051 (1998) provides:

The cost of any [public] improvement * * * may be assessed upon property benefited by the improvement, based upon the benefits received * * *.

The benefit received from an improvement is the increase in market value of the benefited land. Buzick, 505 N.W.2d at 53. An increase in market value is the difference between what a willing buyer would pay a willing seller for the property before the improvement and after the improvement. EHW Properties v. City of Eagan, 503 N.W.2d 135, 139 (Minn.App.1993). Market value is calculated

based on the highest and best use of the land. Present use of the land is not the controlling factor in determining whether the land has received benefit from the improvement. Rather, the test is whether the land could be used for purposes which would benefit from the improvement.

Buzick v. City of Blaine, 491 N.W.2d 923, 925 (Minn.App.1992) (quotations and citations omitted), aff'd, 505 N.W.2d 51 (Minn.1993).

Characteristically, an appraiser in a special-assessment case is to give two val-mes to the property: the first is the value of the property before the public improvement is in place and the second is the value of the property after the improvement is in place. Strachota was to determine the benefit to the property as of August 1998. He did this by assuming that a townhouse complex was to be built on the land, even though as of August 1998 the construction of the complex had just started. (As far as we can determine from the record, the project has just been, or will be, completed this year.) He then assumed that the price a willing buyer would pay for the property in August 1998 would be determined by the condition of the property as of the completion of the complex in 2000. Based on these assumptions, he appraised the "before value by looking at a townhouse complex without the public improvements, which would be a project with 166 units. Similarly, he determined the after value by looking at a complex with the public improvements, which would be a project with only 152 units.

The essence of Strachota’s appraisal, and the respondent’s position, is that due to the particular land configuration and the streets and sewers existing before the public improvements, the improvements were not necessary and in fact resulted in a decrease in the value, because the landowner could only put 152 units in the complex, rather than 166.

As noted above, the city’s position is that Strachota’s method is not a legally accepted method for appraisals, and thus it was erroneous for the trial court to have admitted his appraisal and to have relied upon it. The city argues that the court erred because Strachota did not value the land either in the before or after condition and that he did not use either the market-data approach or the development-cost approach. The city points to Strachota’s testimony that the “appraisal methodology that he used determined the difference in the land and profit before and after the [public improvement] project.” (Emphasis in original.) The city goes on to argue:

The fact that a developer might make less ■ profit because of the assessments [sic] does not mean that the property was not benefited by the amount of the assessments.

In short, the city argues that Strachota’s approach is improper because it appraises a -“rental townhouse project,” not the bare land. At the onset, it should be noted that in the appropriate case, the appraisal should take into account any buildings on the property and-not merely look at the value of the bare land. See, e.g., Schumacher v. City of Excelsior, 427 N.W.2d 235, 239 (Minn.1988) (holding -that special assessment must be based on .increased market value of existing apartment complex).

However, the main thrust of the city’s argument is that Strachota “used an improper methodology that has not been recognized by any appellate court” because his method is not one of the four traditionally used by courts: (1) the market-data approach based on comparable sales; (2) the income-capitalization approach; (3) the reproduction-cost, less depreciation, approach; and (4) the development-cost approach. See Ramsey County v. Miller, 316 N.W.2d 917, 919-21 (Minn.1982). But the city provides no support for its view that these four methods are exclusive.

Moreover, we have previously held that

any method resulting in a fair approximation of the increase in market value for [a] benefited parcel may be used. A method which on its face appears to be a fair approximation will be presumed valid, with the burden resting upon the objector to show its invalidity.

DeSutter v. Township of Helena, 489 N.W.2d 236, 237-38 (Minn.App.1992) (citing Continental Sales & Equip. v. Town of Stuntz, 257 N.W.2d 546, 550 (Minn.1977)), review denied (Minn. Sept. 30, 1992); see also Ramsey County, 316 N.W.2d at 919 (to determine fair market value of property, all relevant evidence should be admissible considering current practices in real estate area); Minn. R. Evid. 102, 402, 403 & comments (the modern trend favors admissibility of all relevant evidence).

At trial, Strachota testified that the Appraisal Institute, an organization of real estate appraisers, approved the approach he utilized. The city did not challenge this claim on cross-examination and does not challenge it on appeal.

Finally, with respect to the facts of the instant case, as of August 1998, the date that Strachota used in his appraisal, the following events had occurred. (1) In 1994, the city zoned the property R-3— multi-family residential. (In point of fact, the city concedes that the highest and best use of the property was multi-family housing.) (2) In 1997, the city issued a CUP to James Development for multi-family housing. (3) In April 1998, the city issued a second CUP for multi-family housing, this one to Johnson Developmeni/PACT. (4) At or about the effective date of Stracho-ta’s appraisal, construction of a multi-family complex had started. In light of these facts, in August 1998 it was almost certain, if not a certainty, that the property would be the site of a multi-family townhouse project within two years. It was therefore reasonable for Strachota to assume that anyone seeking to purchase the property in August 1998 would view the value of the property with a completed townhouse project in place. It is our conclusion that it was likewise appropriate for Strachota to appraise the property by viewing it in the same way.

DECISION

We conclude that the methodology used by Strachota in his appraisal yields fair approximations of both the before and after values of the property, see Alstores Realty, Inc. v. State, 286 Minn. 343, 352, 176 N.W.2d 112, 118 (1970) (value of real estate was for trier of fact to determine) and that it was not error for the district court to admit Strachota’s appraisal and to rely upon it.

Affirmed.

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

      . The city also relies on a warranty deed purporting to convey the property from Johnson to Stuart. But Johnson could not convey any interest in the property because it had no interest in the property. See Mitchell v. Hawley, 83 U.S. (16 Wall.) 544, 550, 21 L.Ed. 322 (1872) (discussing common-law principle that one cannot give that which one does not have, i.e., no one can give a better title to a thing than one possesses).


text:
    Kris Renee JOHNSON, Relator, v. DOLPHIN STAFFING, Commissioner of Economic Security, Respondents.
    No. C2-99-2037.
    Court of Appeals of Minnesota.
    July 18, 2000.
    Review Denied Sept. 13, 2000.

      Kris Renee Johnson, Minneapolis, pro se relator.
    Dolphin Staffing, Dolphin Clerical Group TCG Incorporated, Minneapolis, Kent E. Todd, St. Paul, for respondent Commissioner of Economic Security.
    Considered and decided by KLAPHAKE, Presiding Judge, KALITOWSKI, Judge, and STONEBURNER, Judge.
   OPINION

KALITOWSKI, Judge.

Relator Kris Renee Johnson challenges the determination of the commissioner’s representative that she was disqualified from reemployment insurance benefits for failure to accept suitable employment, pursuant to Minn.Stat. § 268.095; subd. 8(a)(2) (1998). We reverse.

FACTS

Relator submitted an employment application to respondent Dolphin Staffing on March 15, 1999. She indicated that she had’ secretarial, data-' entry, and telephone experience and was available for permanent or long-term, full-time work. Relator completed her first work assignment through Dolphin from March 18 through March 25, Í999.

She accepted a subsequent assignment to begin on March 29, 1999, at a business in downtown Minneapolis. She traveled to the business early that morning, only to discover that the company was not located at the address she had been given. She immediately contacted Dolphin and spoke with a staffing consultant, who informed her that the assignment had been canceled but- offered relator an alternative assignment at Northstar Title beginning that day and lasting until at least June 4. Relator considered the offer for a short time and then called back and accepted it.

Relator arrived at Northstar at nine o’clock that morning and began a training session, where a supervisor told her that the job could become permanent. Relator responded that she was not interested in permanent employment. She then called the Dolphin staffing consultant and informed him that Northstar was seeking a permanent employee and that she only wanted temporary work. Relator asked whether she should continue in the position and was told that she should. She called Dolphin again later thát day and said that she did not wish' to continue working at Northstar. She did not return to Northstar after the first day. Dolphin later received a report from Northstar that relator was unfriendly and had complained that Dolphin forced her to take the position.

Dolphin subsequently offered relator another work assignment from April 20-23, 1999, which she successfully completed. On April 28, 1999, she accepted what was to be her last assignment through Dolphin, a position as a law firm receptionist. On May 10, 1999, Dolphin informed relator that this assignment had been canceled because the law firm was not happy with her performance. Relator has had no further job assignments with Dolphin.

Relator established her reemployment insurance account on June 27, 1999. On her application, she indicated a discharge date of May 10, 1999, the date of her discharge from the law firm. The department determined that relator was eligible for benefits, and Dolphin appealed. The reemployment insurance judge affirmed, finding that claimant was not disqualified from benefits because her discharge from the law firm was for reasons other than misconduct.

Dolphin appealed'to the commissioner’s representative, who agreed that relator had not been discharged from the law firm for misconduct. But the commissioner’s representative concluded that relator was disqualified for failure to accept suitable employment, by turning down the potentially permanent assignment with North-star Title that was to have run from March 29 until at least June 4. -

ISSUE

Did the commissioner’s representative err by determining that relator was disqualified from receiving reemployment insurance benefits because she failed to accept suitable employment?

ANALYSIS

Appellate review of the commissioner’s factual findings is limited to whether the evidence, viewed in the light most favorable to the decision, supports that decision. Lolling v. Midwest Patrol, 545 N.W.2d 372, 377 (Minn.1996). The ultimate determination of whether an employee is properly disqualified from receiving benefits is a question of law, subject to de novo review. Id.

The reemployment insurance fund is available only to individuals who are unemployed through no fault of their own. Minn.Stat. § 268.03, subd. 1 (1998). A claimant is disqualified from benefits if, without good cause, he or she fails to seek or accept suitable employment when offered. Minn.Stat. § 268.095, subd. 8(a)(2) (1998). Suitable employment is “employment in the claimant’s labor market area that is reasonably related to the claimant’s qualifications.” Minn.Stat. § 268.095, subd. 9(a) (1998).

Relator challenges the commissioner’s factual finding that the employment with. Northstar was “suitable employment.” We need not reach this issue, however, because we conclude that the commissioner erred as a matter of law by determining that relator was disqualified for rejecting a job offer she received before her claim for benefits arose.

Relator argues that her refusal to accept suitable work on March 29, 1999, is irrelevant to her claim for reemployment insurance benefits. We agree. Relator accepted subsequent assignments from Dolphin after March 29 and only sought benefits following her discharge from the law firm on May 10, 1999. Thus, even assuming that the position with Northstar was “suitable employment,” the offer came more than a month before the discharge that resulted in her claim for benefits.

The commissioner’s representative relied on Minn.Stat. § 268.095, subds. 8 and 9, in support of the determination that relator was disqualified. Subdivision 8 provides that a claimant is disqualified from benefits for failing to accept an offer of suitable employment and subdivision 9 defines “suitable employment” as employment in the claimant’s labor market area that is reasonably related to his or her qualifications. But neither of these subdivisions nor any other provision under the reemployment insurance statutes supports disqualification for rejecting a job offer that predates a claim for benefits.

We note that relator was not required to disclose the job offer from Northstar in order to meet the express statutory obligations imposed- on an individual seeking reemployment insurance benefits. Under Minn.Stat. § 268.101, subd. 1(a) (1998), a claimant must disclose “the names of all employers and the reasons for no longer working for all employers during the claimant’s last 30 days of employment.” The statute plainly identifies the reason for this requirement:

The purpose for requiring the claimant to report the name of all employers and the reason for no longer working for all employers during the claimant’s “last 30 days of employment” is for the commissioner to obtain information from a claimant on all issues that have the potential for disqualifying the claimant from benefits under section 268.095.

Minn.Stat. § 268.101, subd. 1(d). This same subdivision details a claimant’s obligation to disclose offers of employment, which is limited to offers made subsequent to a claim for benefits:

Each claimant shall report any employment, loss of employment, and offers of employment received, during those weeks the claimant made continued claim for benefits. * * * The claimant shall report any offers of employment during the period between the making of continued claims.

Minn.Stat. § 268.101, subd. 1(c) (emphasis added). In other words, a claimant must disclose all employers in the 30 days prior to making a claim, but is only required to report offers of employment that occur after the claim. Here, relator was not obligated to disclose the position under either requirement.

The commissioner’s representative cited no legal authority for the proposition that disqualification occurs when a claimant rejects a job offer that predates a claim for benefits. Dolphin points to no such authority on appeal, and our independent research similarly reveals no cases in which a claimant was deemed “disqualified” for refusing a job offer made before the right to claim reemployment insurance benefits even''existed. A number of cases address the ramifications of a claimant’s refusal to accept an offer of employment made after making a claim for reemployment benefits, but all involve job offers made after the right to claim benefits arose, not before. By disqualifying relator for failing to accept employment with Northstar, the commissioner’s representative in effect -imposed a stricter disclosure requirement than the legislature contemplated, contrary to the general rule that the disqualification provisions are to be narrowly construed. See, e.g., Hansen v. C.W. Mears, Inc., 486 N.W.2d 776, 779 (Minn.App.1992), review denied (Minn. July 16,1992).

Finally, we note that Dolphin does not appear to have raised or argued the suitability of the offer of employment from Northstar until its appeal to the commissioner’s representative of the reemployment insurance judge’s decision. We are troubled by the apparent failure to afford relator any prior notice that her refusal to accept employment with Northstar might be at issue. But because we decide this case on its merits, we need not address relator’s argument that she was denied procedural due process.

DECISION

The commissioner’s representative erred as a matter of law in determining that relator was disqualified from reemployment insurance benefits for failure to accept an offer of suitable employment that predated her claim for benefits.

Reversed.

      . The legislature recently amended the reemployment compensation statutes. Because all of the events relevant to a determination of relator’s initial eligibility occurred prior to the effective date of the amendments, we apply the substance and terminology of the reemployment insurance statutes in effect at that time. We note, however, that nothing in the amendments would affect our holding here.

      . See, e.g., Valenty v. Medical Concepts Dev., Inc., 503 N.W.2d 131, 134 (Minn.1993) (holding that a claimant who accepted unsuitable employment was not disqualified from receiving benefits for subsequently terminating that employment); Whitehead v. Moonlight Nursing Care, Inc., 529 N.W.2d 350, 352 (Minn.App.1995) (concluding claimant was not disqualified for refusing to accept a new assignment from temporary employer where employer only left a message and never contacted claimant personally); Henry v. Dolphin Temporary Help Servs., 386 N.W.2d 277, 280 (Minn.App.1986) (finding claimant was not disqualified from receiving continued benefits from base-period employer because she sought and/or rejected temporary assignments from temporary employer).


text:
    Randy Lee BUSCH, petitioner, Appellant, v. COMMISSIONER OF PUBLIC SAFETY, Respondent.
    No. C8-99-2124.
    Court of Appeals of Minnesota.
    July 18, 2000.

      Brent S. Schafer, Gerald Miller and Associates, Minneapolis, for appellant.
    Mike Hatch, Attorney General, Jeffrey F. Lebowski, Sheila M. Fitzgerald, Assistant Attorneys General, St. Paul, for respondent.
    Considered and decided by SHUMAKER, Presiding Judge, HUSPENI, Judge, and PORITSKY, Judge.

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

   OPINION

PORITSKY, Judge.

Driver challenges the district court’s decision sustaining the revocation of his driver’s license under the implied consent law, arguing that his right to counsel was not vindicated. Because we agree with the district court that the driver’s conduct subsequent to requesting.an attorney constituted a retraction of his request and a refusal to test, we affirm.

FACTS

On July 9, 1999, appellant Randy Lee Busch was arrested for DWI. Immediately upon beihg arrested, he laughed, smiled, and told arresting officer Jeff Tate, “I want to talk to my attorney.”

Officer Tate proceeded to read the Minnesota implied consent advisory to Busch, who was seated in the back seat of Tate’s patrol car. Tate read the advisory once and asked Busch if he understood the advisory. Busch refused to respond. Tate read the advisory a second time and again received no response. He told Busch he needed a yes or no answer and read the advisory a third time, but again received no response. Each time he read the advisory, Busch would smile and roll his head or look away .from Tate.

Tate then asked Busch if he wished to consult an attorney. Busch refused to respond. Tate repeated the question three times, each time receiving no response. Tate then asked Bus.ch if he would take a blood, urine, or breath test, but Busch refused to reply. Tate informed Busch that his silence constituted a refusal to test, and he transported Busch to the Scott County jail. En route to the jail Busch told Tate that he was going to “make things difficult” for Tate and that Tate would “pay for this.”

Busch’s driver’s license was revoked for a period of one year, based on his refusal to submit to testing. Busch filed a petition challenging the revocation. At the hearing before the district court judge, the parties stipulated that the only issue was whether or not Busch’s right to counsel bad been vindicated. An audiotape recording .of the incident was played and admitted into evidence. The district court affirmed the revocation, concluding that Busch’s failure to respond to Tate’s questions amounted to a retraction of his request for an attorney and a refusal to test. Busch appeals.

ISSUE

Did appellants behavior during the reading of the implied consent advisory frustrate the process, thus constituting a retraction of his request for an attorney and a refusal to test?

ANALYSIS

The implied consent law provides that any person who drives a motor vehicle consents to a chemical test to determine the presence of alcohol. Minn.Stat. § 169.123, subd. 2(a) (1998). The consequence of refusing the test is revocation of the driver’s license for one year. Minn. Stat. § 169.123, subd. 4(c) (1998). Whether one has refused testing is a question of fact. Lynch v. Commissioner of Pub. Safety, 498 N.W.2d 37, 38 (Minn.App.1993). On appeal, a district court’s factual findings will not be disturbed unless clearly erroneous. Id. at 39. Conclusions of law may be reversed if the district court erroneously construed the law. Dehn v. Commissioner of Pub. Safety, 394 N.W.2d 272, 273 (Minn.App.1986).

The district court concluded as a matter of law that Busch’s uncooperative behavior while Officer Tate read the implied consent advisory amounted to a retraction of his request for an attorney and a refusal to submit to testing. On appeal, Busch raises two arguments: (1) his right to counsel was not vindicated and (2) therefore his refusal to test was reasonable. However, we agree with the district court that the proper framing of the issue is whether or not Busch’s behavior amounted to a retraction of his request to contact an attorney: if Busch retracted his request, his right to counsel was not violated.

Under the Minnesota Constitution, an individual has a limited right, upon request, to obtain legal advice before deciding whether to submit to chemical testing, provided the consultation does not unreasonably delay administration of the test. Minn.Stat. § 169.123, subd. 2(b)(4) (1998); Friedman v. Commissioner of Pub. Safety, 473 N.W.2d 828, 835 (Minn.1991). In arguing that his right to counsel was not vindicated, Busch relies on McCann v. Commissioner of Pub. Safety, 361 N.W.2d 169 (Minn.App.1985). In McCann, the defendant was arrested for DWI and placed in a holding cell at the jail, where he requested an attorney. Id. at 170. His request was ignored because the officers were completing the testing of another driver arrested for DWI. Id. McCann was then taken to an interview room for the implied consent advisory, where he again requested an attorney, but again his request was ignored and the advisory was read to him. Id.

Although this court found that McCann’s right to counsel was violated when his second request was ignored, we found that there was no such violation when the officers ignored his first request. The court, quoting Minn.Stat. § 481.10 (1982), noted that a request for an attorney must be complied with “as soon as possible.” Id. The court went on to state that when a person is in a holding cell, “there is no absolute right to immediate access to an attorney.” Id. It was only after McCann was taken to the interview room and made his second request to call his attorney that “the officer was obligated to vindicate” McCann’s right to counsel. Id.

The facts here closely resemble those surrounding McCann’s first request for an attorney, where we ruled there was no violation of McCann’s right to counsel. Like McCann, Busch had “no absolute right to immediate access to an attorney.” Id. Busch’s request was made at the scene of the arrest in the back seat of a patrol car where no telephone was readily available. Busch argues that the patrol car served as the “interview room” in McCann, so upon his request Tate was required to provide him with access to a telephone. Since there was no telephone in the back seat of the patrol car, however, the situation was more analogous to the holding cell in McCann than to the interview room.

Moreover, in McCann, as noted above, we said the officers had no duty to interrupt their test of the other driver, and it was reasonable for them to let McCann wait a few minutes to ensure that adequate security was available. Similarly, in the instant case it was reasonable for Officer Tate to complete his statutorily mandated duty of informing Busch of his rights and duties under the implied consent law. See Minn.Stat. § 169.123, subd. 2(b) (1998) (“[a]t the time a test is required, the person shall be informed” that the law requires the person to take a test, that refusal to test is a crime, and that the driver has the right to consult an attorney) (emphasis added). For these reasons, McCann does not support Busch’s position.

Once an officer has lawfully invoked the implied consent procedure, a driver must decide whether or not to submit to a test. As noted above, a driver has the right, upon request, to obtain legal advice before making that .decision. Minn. Stat. § 169.123, subd. 2(b)(4) (1998); Friedman, 473 N.W.2d at 835. A failure to make the decision constitutes a refusal to test and will result in a revocation. Cf. Holtz v. Commissioner of Pub. Safety, 340 N.W.2d 363 (Minn.App.1983) (officer properly determined driver had refused testing when driver remained silent in response to questions about whether he understood his rights under implied consent advisory).

Chemical testing in a DWI proceeding, pursuant to the implied consent law, is not self-incriminátion Snd does not trigger Fifth Amendment protection against self-incrimination. State v. Slette, 585 N.W.2d 407, 410 (Minn.App.1998). Busch’s request for an attorney was sufficiently ambiguous to allow Officer Tate to attempt to clarify the request following the reading of the implied consent advisory; it was unclear whether Busch was requesting an attorney in connection with his DWI arrest or the request to take a chemical test. See id. (when driver expresses interest in consulting with an attorney, officer must either vindicate underlying right or clarify driver’s request). Busch proceeded to frustrate Officer Tate’s attempts by refusing to respond to his questions, by rolling his head away while Tate read the advisory, and by telling Tate that he wanted to make things difficult for the officer and that the officer would pay for this.

Beyond the duty to make the initial decision of whether or not to submit to a test, the courts have recognized that the implied consent law imposes on a driver a requirement to act in a manner so as not to frustrate the testing process. If a driver does frustrate the process, his conduct will amount to a refusal to test. See, e.g., Palme v. Commissioner of Pub. Safety, 541 N.W.2d 340, 344 (Minn.App.1995) (“driver must make a good faith and sincere effort to reach an attorney”) (quoting Kuhn v. Commissioner of Pub. Safety, 488 N.W.2d 838, 842 (Minn.App.1992), review denied (Minn. Oct. 20, 1992)), review denied (Minn. Feb. 27, 1996); Sigfrinius v. Commissioner of Pub. Safety, 378 N.W.2d 124 (Minn.App.1985) (driver’s actions constituted a refusal to test, in case where driver put breath mint in his mouth and was advised five to six times to remove it, and trial court found driver’s actions were calculated to avoid suspension of license).

Based on these facts, we conclude that the district court properly found that Busch’s behavior frustrated the implied consent process and amounted to a retraction of his request for an attorney and a refusal to submit to testing.

DECISION

Because Busch’s behavior during the reading of the implied consent advisory frustrated the implied consent process and constituted a retraction of his request for an attorney and a refusal to test, the district court correctly affirmed the revocation of Busch’s license under the implied consent laws.

Affirmed.

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

      . In district court, the parties stipulated that the only issue was whether or not Busch's right to counsel was vindicated. See Linde v. Commissioner of Pub. Safety, 586 N.W.2d 807, 809 (Minn.App.1998) (right vindicated if driver is provided with telephone and given reasonable time to contact and consult with attorney prior to testing) (quotation and citation omitted), review denied (Minn. Feb. 18, 1999). As a matter of law, if a person’s right to counsel is not vindicated, a refusal to test is reasonable. See, e.g., Prideaux v. Department of Pub. Safety, 310 Minn. 405, 422, 247 N.W.2d 385, 395 (1976) (if police fail to vindicate right to counsel and driver refuses to take test, he should not be deemed to have unreasonably refused the test). Although Busch attempts now to present the issues in terms of vindication of his right to an attorney and the reasonableness of his refusal to test, we agree with the district court that the correct analysis is whether he retracted his request to contact an attorney.

      . We note that the result in the instant case is also consistent with this court's decisions in Barton v. Commissioner of Pub. Safety, No. C2-95-2594, 1996 WL 291374 (Minn.App. June 4, 1996) (refusal to test found where driver’s "uncooperative behavior” frustrated officer’s attempt to read implied consent advisory) and Lower v. Commissioner of Pub. Safety, No. C1-95-965, 1996 WL 118403 (Minn. App. Mar. 19, 1996) (constructive refusal to test results when driver’s conduct following reading of implied consent advisory frustrates the process), cited in respondent’s appellate brief.

      . Because we have affirmed that Busch's conduct subsequent to his request for an attorney amounted to a retraction of his request, we need not address the issue of when the right to counsel in an implied consent advisory case attaches.