author: PER CURIAM.

text:
    In re CHARGES OF UNPROFESSIONAL CONDUCT CONTAINED IN PANEL CASE NO. 15976.
    Nos. C6-02-139, C3-02-227.
    Supreme Court of Minnesota.
    Nov. 27, 2002.

      Michael J. Hoover, Minneapolis, for Appellant.
    Patrick R. Burns, Senior Assistant Director Office of Lawyers Professional Responsibility, St. Paul, for Respondent.
    Kristyn Aceto Garofalo, Assistant Attorney General, St. Paul, for Petitioner.
    Daniel Stuart Goldberg, Hedin & Goldberg, P.A., Jeanette A. Frederickson, Frederickson & Associates, Minneapolis, for Amicus Curiae Pacer Center, Inc.
    Luther A. Granquist, Minneapolis, for Amicus Curiae Minnesota Disability Law Center.
   OPINION

PER CURIAM.

Respondent represented a disabled plaintiff in a personal-injury action. During the jury trial, respondent moved for a mistrial advocating on behalf of his client that the presence of the court’s severely disabled law clerk diminished his client’s ability to receive a fair trial. At the conclusion of trial, respondent moved for a new trial, once again objecting to the presence of the law clerk in the courtroom. Judge Franklin J. Knoll (complainant) filed a complaint with the Office of Lawyers Professional Responsibility (OLPR) asserting that respondent’s conduct violated the Minnesota Rules of Professional Conduct. The Director issued an admonition to respondent. Pursuant to Rule 8(d)(2)(iii) of the Rules on Lawyers Professional Responsibility, respondent requested that a Lawyers Professional Responsibility Board Panel (Panel) review the matter. After a hearing, the Panel concluded that respondent violated Minn. R. Prof. Conduct 3.1 and 8.4(d) and amended and affirmed the Director’s admonition pursuant to 8(d)(2), RLPR. Complainant filed a petition for discretionary review under 9(1), RLPR. As a matter of right, respondent also appealed the Panel’s amended admonition. We granted complainant’s petition for discretionary review and ordered consolidation of the two cases. We affirm.

The facts are undisputed. Respondent currently practices law in St. Paul, Minnesota, and has been a member of the Minnesota bar since October 15, 1987. Respondent has not previously been subject to any disciplinary proceedings. In March 2000, respondent represented a client in a personal-injury action in Henne-pin County District Court.

Respondent’s client sustained serious permanent physical injuries that disabled him when a school bus hit and ran over him with a rear tire while he was riding a bicycle in South Minneapolis. The accident crushed his pelvis, and left him in a coma for approximately 1 month. By the time of trial, the client was able to walk with the assistance of a cane. Before the accident, the client was employed as a checker and bagger at a grocery store and as a greeter at a restaurant. His employment background consisted of similar unskilled and physical labor positions. At trial, the client asserted that his permanent injuries prevented him from performing physical-labor-type jobs and that he did not qualify educationally or intellectually for other types of employment. Therefore, he .sought damages for future loss of wages and future diminished earning capacity.

Complainant presided over the personal-injury action and assigned one of his two law clerks to assist with the action. The clerk assigned by complainant to assist in this case is physically disabled. He is paralyzed from his mouth down and has difficulty breathing and speaking. He performed his duties as a law clerk with the assistance of a large wheelchair, respirator and full-time attendant. The disabled clerk was present in the courtroom at the outset of the personal-injury trial, assisted with jury selection, and remained in the courtroom throughout the trial.

On the first day of trial, respondent’s client expressed reservations about his ability to receive a fair trial grounded on the fact that if the disabled law clerk continued to work in the courtroom, the jury would compare the clerk who was more severely disabled yet able to work, to himself, who was less severely disabled and claiming an inability to work. Later that same day respondent made an oral motion outside the presence of the jury, “for a mistrial and another panel of jurors without your law clerk present or in the alternative that this case be assigned to another [jjudge.” Respondent gave the following explanation for his motion:

I will be asking the jury to award future loss of wages, future diminished earning capacity. I do not believe a jury when they look at the comparison with your law clerk, who’s obviously gainfully employed, working in the courtroom under great handicap and great duress, will be able to award anything to my client under those circumstances.

Respondent stated that he brought the motion with “great reluctance” and acknowledged that the motion was “outran geous and distasteful for’the [cjourt.” He did not support his motion with any legal authority. Stating that the motion was “un-American,” complainant denied the motion.

The jury found in favor of the defendant on the issue of liability. Subsequently, respondent brought a written motion for a new trial. Respondent asserted the presence of the disabled clerk in the courtroom as one basis for the motion. Respondent again stated that his objection to the clerk’s presence in the courtroom was made with “the greatest reluctance,” but he argued that the jury would compare the disabilities of the law clerk with the injuries of his client. Again, respondent failed to cite any legal authority in support of his position.

Complainant filed a complaint with the OLPR. Complainant argued that respondent’s objection to his clerk’s presence in the courtroom violated Rules 3.1, 4.4, 8.4(d), 8.4(g) and 8.4(h) of the Minnesota Rules of Professional Conduct. The matter was assigned to the Second District Ethics Committee for investigation, which referred the matter to the Director. The Director issued an admonition to respondent. Pursuant to Rule 8(d)(2)(iii), RLPR, respondent requested that a Lawyers Professional Responsibility Board Panel review the matter.

The Panel held a hearing. Addressing his reasons for bringing the motion for a mistrial respondent stated, “I was thinking of fairness and I was thinking of my client and his wishes with respect to at least raising the issue to the judge.” He also asserted that his duty to ensure his client received a fair trial overrode his reluctance to bring the motion. Finally, he stated that he would not have made the objection in a case that did not involve disability issues that might lead to similar comparisons.

Responding to questions concerning the written motion for a new trial, respondent maintained that he only raised the issue of the disabled clerk’s presence in the courtroom to preserve the argument for appeal. Respondent also asserted that he did not cite to any legal authority in the motion because his firm was unable to locate any relevant law and the issue was one of first impression. Respondent also acknowledged that he never made any formal apologies to the disabled clerk, but argued that contact with the clerk would have been inappropriate once the complaint was filed with the Director.

The Panel concluded that respondent violated Minn. R. Prof. Conduct 3.1 and 8.4(d) when he brought the written motion for a new trial - and issued an amended admonition to respondent. Addressing first the motion for a mistrial, the Panel found that although the motion was “ill-considered,” respondent’s conduct in bringing the motion did not violate the Minnesota Rules of Professional Conduct. Turning to the subsequent written motion for a new trial, the Panel found that the objection to the disabled clerk’s presence in the courtroom was improper and violated Minn. R. Prof. Conduct 3.1 and 8.4(d). The Panel found that respondent had “ample opportunity” to find legal authority to support the motion and to reflect upon the appropriateness of the motion. Further, the Panel concluded that respondent’s position was unsupported by legal authority; thus, he had “no reasonable expectation that his motion would prevail.”

On appeal, we are presented with two issues: (1) Whether the Lawyer’s Professional Responsibility Board Panel’s conclusion that respondent violated the Minnesota Rules of Professional Conduct is clearly erroneous? (2) If respondent did violate the Minnesota Rules of Professional Conduct, did the Panel act arbitrarily, capriciously, or unreasonably in affirming the admonition issued by the Director?

Respondent contends that his conduct did not violate Rules 8.1 or 8.4(d). We will reverse the decision of the Panel only if we conclude that the Panel’s decision was clearly erroneous. In re Lawyers Professional Responsibility Board Panel No. 94-17, 546 N.W.2d 744, 746 (Minn.1996); In re Admonition issued to X.Y., 529 N.W.2d 688, 689-690 (Minn.1995).

Under Rule 8.4(d), it is professional misconduct for an attorney to “engage in conduct that is prejudicial to the administration of justice.” The Panel found that respondent violated Rule 8.4(d) by bringing the written motion for a new trial. We have concluded that similar race-based misconduct violates Rule 8.4(d). In re Panel File 98-26, 597 N.W.2d 563 (Minn.1999).

In In re Panel File 98-26, we issued an admonition to a prosecutor for making a motion to exclude a public defender from participating in a trial based solely on his race. Id. at 569. After accepting a position as a special assistant county attorney, the prosecutor was assigned to take over the prosecution of an African-American male charged with two counts of felony robbery of a Caucasian couple. Id. at 565. The prosecutor previously assigned to the case left a memorandum in the case file explaining that the public defender felt race was an issue in the case and planned to recruit an African-American public defender to try the case. Id. at 565-66. Subsequently, the prosecutor brought a motion in limine requesting:

[A]n Order from this Court prohibiting counsel for the defendant to have a person of color as co-counsel for the sole purpose of playing upon the emotions of the jury.

Id. at 566. Two workdays after filing the motion, the prosecutor realized the gravity of her mistake, withdrew the motion, and apologized to both public defenders. Id. She also implemented measures to prevent reoccurrence of the misconduct. Id. After a hearing, a Panel concluded that the prosecutor violated Minn. R. Prof. Conduct 8.4(d), but that her conduct was “isolated and non-serious” and therefore issued a private admonition. Id. at 566-67.

On review, we rejected the Panel’s determination that the prosecutor’s conduct was “non-serious” and unequivocally held that race-based misconduct is inherently serious. Id. at 567. Moreover, we emphasized that race-based misconduct committed by an officer of the court is especially destructive because it “undermine[s] confidence in our system of justice [and] erode[s] the very foundation upon which justice is based.” Id. at 568. We concluded that the prosecutor’s remorse and lack of malice did not transform the conduct from serious to non-serious. Id. at 568. Thus, because private admonitions can only be issued by the Panel for “non-serious isolated” violations, we reversed the private admonition issued by the Panel. Id. at 567-68. We next determined the appropriate discipline under Rule 9(1), RLPR, which authorizes the court to “take any * * * action as the interest of justice may require.” Acknowledging that the prosecutor demonstrated remorse, lacked malicious intent and took remedial actions, we issued a private admonition. Id. at 568-69.

In In re Panel File 98-26, we emphasized that race should never be used as a basis for limiting an attorney’s participation in a court proceeding. Id. at 568. We extend this holding to encompass situations where disability is used to limit a court employee’s participation in a court proceeding. Neither race nor disability should be used as a means of limiting participation in our courts. Minnesota has adopted legislation prohibiting discrimination against individuals with disabilities. See Minnesota Human Rights Act (MHRA), Minn.Stat. §§ 363.01-363.20 (2000). The MHRA prohibits discrimination against individuals with disabilities in employment, housing, public accommodations, public services and education; the MHRA also prohibits race-based discrimination in these same areas. Minn.Stat. § 363.12 (2000). Minnesota treats race-based discrimination and disability-based discrimination equally under the MHRA. Therefore, we conclude that the Panel’s determination that respondent violated Rule 8.4(d) is not clearly erroneous.

The Panel also found that respondent violated Minn. R. Prof. Conduct 3.1 by bringing the written motion for a new trial because he failed to support his position with legal authority. Rule 3.1 provides in relevant part:

A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law.

While we are concerned that over zealous application of Rule 3.1 may hinder the development of law by discouraging attorneys from bringing issues of first impression or good faith arguments for the extension, modification or reversal of existing law, we need not reach this issue because we have already determined that respondent’s conduct violated Rule 8.4(d).

Having affirmed the Panel’s determination that respondent violated the Minnesota Rules of Professional Conduct, we must next determine whether the Panel issued the appropriate discipline. Complainant sought discretionary review of the Panel’s disposition under 9(1), RLPR. Upon review, if we find the Panel acted arbitrarily, capriciously, or unreasonably, we may “remand the matter, to the same or a different Panel, direct the filing of a petition for disciplinary action, or take any other action as the interest of justice may require.” 9(1), RLPR. Here, the Panel affirmed the admonition issued by the Director, and issued an amended admonition pursuant to 8(d)(2), RLPR. Rule 8(d)(2) provides that an admonition may be issued only when a lawyer’s unprofessional conduct is of an “isolated and non-serious” nature. Thus, we must determine whether the Panel’s conclusion that respondent’s misconduct was “isolated and non-serious” was arbitrary, capricious and unreasonable. “Where there is room for two opinions on the matter, [a decision] is not ‘arbitrary and capricious,’ even though it may be believed that an erroneous conclusion has been reached.” Brown v. Wells, 288 Minn. 468, 472, 181 N.W.2d 708, 711 (1970).

The circumstances of this case support the Panel’s determination that respondent’s misconduct was an isolated incident. Respondent made two arguments during the same trial that related to the same issue. There were no other incidents of misconduct. Thus, we agree with the Panel that this was an isolated incident.

Citing to In re Panel File 98-26, complainant argues that respondent’s disability-based conduct was inherently serious and a more severe sanction is justified. Under state and federal statutes, it is an objective to end disability-based discrimination and to integrate persons with disabilities so they can access employment opportunities, education and places of public accommodation. A disabled court employee has a right to perform his job in the courtroom. But here we have the perceived rights of two disabled persons potentially in conflict with one another. Respondent’s client also suffers from a disability. Respondent’s client was concerned that the jury would compare the law clerk’s more severe disability with his less severe disability and that comparison would unduly influence the jury to decide against him on his claims and deprive him of a fair trial. Ironically, the concern of respondent’s client, as argued by respondent, was not that the law clerk’s disability prevented him from capably performing his job, but that the law clerk’s demonstrated capability would diminish the client’s disability claim. Respondent’s motion can be viewed as an inappropriate attempt to address the respective rights of two disabled persons, rather than elevating the rights of one over the rights of another. If respondent was concerned that the jury might make improper comparisons, respondent could have addressed those concerns during voir dire. Nonetheless, when viewed in context, we conclude that the Panel did not act arbitrarily, capriciously or unreasonably by finding that respondent’s conduct in this particular situation was non-serious.

Any discriminatory effect from the motion was indirect because respondent did not exercise any authority or control over the disabled clerk. In contrast, the prosecutor in In re Panel File 98-26 misused the power of the state by interfering with a defendant’s right to counsel in seeking to prevent the public defender from representing the defendant based solely on the public defender’s race. See 597 N.W.2d 563. Taking into consideration the unique circumstances of this case, we conclude that the Panel did not act arbitrarily, capriciously, or unreasonably by issuing an amended admonition to respondent.

So Ordered.


source: Caselaw Access Project

author: G. BARRY ANDERSON, Judge.

license: Public Domain

text:
    In re the Matter of Keelia P. TURNER, Respondent, Ramsey County, Respondent, v. Lionel Racquint SUGGS, Appellant.
    No. C5-02-360.
    Court of Appeals of Minnesota.
    Oct. 8, 2002.

      John G. Westrick, Tammy L. Merkins, Westrick & McDowall-Nix, P.L.L.P., St. Paul, MN, for appellants.
    Susan Gaertner, Ramsey County Attorney, Kristi Swanson Wendorff, Assistant County Attorney, for respondent Ramsey County; and Keelia Turner, St. Paul, MN, pro se respondent.
    Considered and decided by G. BARRY ANDERSON, Presiding Judge, TOUSSAINT, Chief Judge, and PARKER, Judge.

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

   OPINION

G. BARRY ANDERSON, Judge.

Based on the admission of appellant Lionel Suggs, the district court adjudicated him the father of respondent Keelia Turner’s child. Genetic testing later excluded appellant as the child’s biological father and appellant moved to vacate the paternity adjudication alleging, among other things, fraud and newly discovered evidence. Without holding an evidentiary hearing, the district court denied appellant’s motion, finding that there was no credible evidence that Turner committed fraud on the court or on appellant. On appeal, appellant contends that the genetic tests conclusively show that Turner committed fraud when, in her sworn written and oral statements, she represented that appellant was the father of the child and the only possible father of the child. By notice of review, respondent Ramsey County argues the district court erred by failing to appoint a guardian ad litem for the child and by failing to conduct an evidentiary hearing to address the validity of the genetic tests and the child’s best interests. We affirm in part, reverse in part, and remand.

FACTS

Between August 1994 and May 2000, appellant and Turner, while unmarried, engaged in a sexual relationship. Turner gave birth on August 18, 1995, and informed appellant that he was the child’s father. Relying on Turner’s unequivocal representations, appellant accepted responsibility for the child, treated the child as his son, and helped care for the child. In May 1997, Turner signed a paternity affidavit stating that there were no other possible fathers of the child. The parties’ relationship deteriorated, and, in fall 2000, Ramsey County sought to adjudicate appellant the father of the child and to address custody, support, and visitation issues.

At the hearing, Turner told the court that appellant was the father of the child. Appellant, again relying on Turner’s consistent and unequivocal representations regarding the child’s paternity, admitted that he was the father and waived his rights to genetic tests and to representation by counsel. The district court found that there were no other presumed fathers of the child and adjudicated appellant the father, ordered him to pay child support and other expenses, and awarded him joint legal custody as well as reasonable visitation.

Subsequent genetic tests of appellant and the child, arranged by appellant, excluded him as the child’s biological father. When appellant informed the district court of the test results, the district court suspended appellant’s child support obligation. Appellant refused to repeat the tests and moved, in the paternity proceeding, to vacate the paternity adjudication under Minn. R. Civ. P. 60.02 and Minn. Stat. §§ 548.14, 518.145 (2000). The county opposed appellant’s motion, arguing that appellant had failed to provide adequate reasons to vacate the paternity adjudication. The county also argued that if appellant’s motion was not denied, a guardian ad litem should be appointed for the child and that an evidentiary hearing was required to address the validity of the genetic tests and whether it would be in the child’s best interests to vacate the paternity adjudication. Without holding an evidentiary hearing, the district court denied appellant’s motion. It concluded that there was no credible evidence that Turner had committed fraud on the court or on appellant. The court noted that Turner has always maintained and continues to maintain that appellant is the only possible father of the child. This appeal followed.

ISSUES
I. Did the district court err by not appointing a guardian ad litem for the child?
II. May a man adjudicated the father of a child in a paternity proceeding seek to vacate a paternity adjudication under Minn. R. Civ. P. 60.02?
III. Did the district court abuse its discretion when it denied appellant’s motion to vacate the adjudication order under Minn. R. Civ. P. 60.02?
IV. May a child’s best interests be considered when determining whether to vacate a paternity adjudication?

ANALYSIS

I.

Not distinguishing among motions to vacate paternity adjudications, actions to establish the nonexistence of a parent-child relationship presumed under Minn.Stat. § 257.55, subd. 1 (2000), and actions to establish nonpaternity, Ramsey County argues that appellant’s motion to vacate the paternity adjudication “is in the nature of an action to establish nonpaternity” under Minn.Stat. § 257.57, subd. 2 (2000), and therefore the district court should have appointed a guardian ad litem for the child under Minn.Stat. § 257.60(2) (2000).

Interpretation of the Parentage Act is a question of law, which we review de novo. Losoya v. Richardson, 584 N.W.2d 425, 427 (Minn.App.1998); R.B. v. C.S., 536 N.W.2d 634, 637 (Minn.App.1995). The Parentage Act sets out various circumstances under which a man is legally presumed to be the father of a child. Minn.Stat. § 257.55, subd. 1. Under Minn. Stat. § 257.57, subd. 2, “a man alleged * * * to be the father” of a child born out of wedlock may “bring an action” to declare the nonexistence of a father-child relationship presumed to exist under Minn. Stat. § 257.55, subd. 1. When an action is brought to declare the nonexistence of a father-child relationship, “[t]he child shall be made a party” to the action if the child is a minor. Minn.Stat. § 257.60(2); see also Minn.Stat. § 645.44, subd. 16 (2000) (stating that “ ‘[sJhalF is mandatory”).

Seeking to declare the nonexistence of a father-child relationship is not the same as bringing an action under Minn. Stat. § 257.57, subd. 2, to declare the nonexistence of a father-child relationship presumed to exist under Minn.Stat. § 257.55, subd. 1. Cf. State ex rel. Brooks v. Braswell, 474 N.W.2d 346, 350 (Minn.1991) (stating that if former husband obtained vacation of order adjudicating him presumed father of child born during his marriage, he then “could have initiated an action for a declaration of the nonexistence of the father and child relationship”).

Here, appellant did not seek a determination that a father-child relationship presumed to exist under Minn.Stat. § 257.55 did not, in fact, exist. Nor did he seek a determination that the father-child relationship did not in fact exist. He moved under Minn. R. Civ. P. 60.02(b), (c), (f), and Minn.Stat. §§ 518.145, 548.14 to vacate the paternity adjudication. Without more, vacating a paternity adjudication does not necessarily destroy the presumption of paternity created by Minn. Stat. § 257.55, subd. 1. Thus, had appellant been successful in obtaining a vacation of the paternity adjudication, any presumption of paternity created by MinmStat. § 257.55, subd. 1, would still exist. Here, appellant implicitly admits this is the case by candidly acknowledging before the district court and this court that a subsequent paternity action could be brought against him and that, despite the genetic tests purportedly excluding him as the child’s biological father, a subsequent paternity action could adjudicate him the father of the child.

Moreover, MinmStat. § 257.57, subd. 2, the provision under which the county alleges appellant brought his motion, refers to bringing “an action” to declare the nonexistence of a father-child relationship presumed to exist under Minn.Stat. § 257.55. Here, appellant moved, in the existing paternity proceeding, to vacate the paternity adjudication; he did not bring the separate action required by statute. Also, the “action” allowed by MinmStat. § 257.57, subd. 2, must be brought by an “alleged” father. Here, when appellant moved to vacate the paternity adjudication, he had already been adjudicated the child’s father. Ramsey County cites no authority for the proposition that a man who is adjudicated to be a child’s father continues to be the child’s “alleged” father under Minn.Stat. § 257.57, and the Parentage Act suggests otherwise. See Minn.Stat. § 257.66, subd. 1 (2000) (stating that adjudications of parentage under the Parentage Act are “determinative for all purposes”).

Case law explains that if the time for bringing the “action” to declare the non-existence of the father-child relationship presumed to exist by Minn.Stat. § 257.55, subd. 1 has not expired, a denial of paternity can be treated as being “in the nature of a counter claim.” See Braswell, 474 N.W.2d at 350. Appellant’s motion to vacate the paternity adjudication cannot be construed as the counterclaim allowed by case law, however. To bring a counterclaim, a proceeding must be pending and the party asserting the counterclaim must seek relief from an opposing party. See Black’s Law Dictionary 353 (7th ed.1999) (defining a “counterclaim” as “[a] claim for relief asserted against an opposing party after an original claim has been made”). Here, nothing was pending when appellant moved to vacate the paternity adjudication.

Thus, on this record, appellant did not (as assumed by Ramsey County) invoke MinmStat. § 257.57, subd. 2. Nor did appellant seek the relief allowed by that provision or use either of the procedural methods allowed for seeking relief under that provision. Indeed, appellant (as an adjudicated father) may not be allowed to even seek relief under that provision. Additionally, actions under Minn.Stat. § 257.57, subd. 2, to declare the nonexistence of the father-child relationship presumed to exist under Minn.Stat. § 257.55, subd. 1, are distinct from actions under Minn.Stat. § 257.60(2) to declare the nonexistence of the father-child relationship. Therefore, we must reject Ramsey County’s argument that appellant’s motion to vacate the paternity adjudication under Rule 60.02 was “in the nature of an action to establish nonpaternity” under Minn. Stat. § 257.57, subd. 2, and require appointment of a guardian ad litem under Minn.Stat. § 257.60(2).

II.

Appellant moved to vacate the paternity adjudication on various bases, including Minn. R. Civ. P. 60.02. The Parentage Act provides that a parentage proceeding “is a civil action governed by the rules of civil procedure.” Minn.Stat. § 257.65 (2000). A motion in a paternity proceeding to vacate a paternity adjudication is apparently governed by the rules of civil procedure. See Braswell, 474 N.W.2d at 350 (stating that proceedings under the Parentage Act are governed by the rules of civil procedure). The Parentage Act, however, also provides that after a judgment is entered, “all” subsequent matters other than custody and visitation are to be decided “in accordance with chapter 518.” Minn.Stat. § 257.66, subd. 3 (2000). Chapter 518 includes Minn.Stat. § 518.145, subd. 2 (2000), which addresses relief from existing orders and judgments. Therefore, arguably a motion in a paternity proceeding to vacate a paternity adjudication is subject to Minn.Stat. § 518.145, subd. 2. Case law suggests, however, that a person is not precluded from seeking relief from a paternity adjudication under either provision. Cf. Peterson v. Eishen, 512 N.W.2d 338, 341 (Minn.1994) (noting, in context of motion to vacate paternity and support orders for voidness, both rule 60.02 and Minn.Stat. § 518.145, subd. 2 may be used to reopen a void judgment); Reid v. Strodtman, 631 N.W.2d 414, 417-18 (Minn.App.2001) (noting the possible application of both rule 60.02 and Minn.Stat. § 518.145, subd. 2 to a support order issued in paternity proceeding).

In light of Minn.Stat. § 257.65, Braswell, Peterson, and Reid, we conclude that a person may seek to vacate a paternity adjudication under Minn. R. Civ. P. 60.02. Our conclusion is consistent with the apparent limits on the relief available under Minn.Stat. § 518.145, subd. 2, which provides for relief from a “judgment and decree, order, or proceeding under this chapter” (i.e., Chapter 518) (Emphasis added.)

III.

Appellant moved to vacate the paternity adjudication under Minn. R. Civ. P. 60.02(b), alleging newly discovered evidence, 60.02(c) alleging fraud, and 60.02(f) which allows relief for “other reasonfe].” The district court denied appellant’s motion, finding that (a) when his paternity was adjudicated, there were no other presumed fathers for the child and that Turner had alleged that there were no other possible fathers for the child; (b) genetic tests later excluded appellant from being the child’s biological father; (c) even after the genetic tests, Turner continues to maintain that appellant is the only possible father of the child; (d) appellant has held himself out as the child’s father since 1995 and is the only father the child has known; (e) appellant indicated that he will seek visitation with the child even if the paternity adjudication is vacated; (f) appellant’s motion is apparently financially motivated; (g) there was no credible evidence that Turner committed fraud on appellant or on the court; (h) no credible evidence supports vacating the paternity adjudication; and (i) it is not in the child’s best interests to vacate the paternity adjudication. Appellant challenges these determinations.

“Whether to vacate a paternity judgment under Minn. R. Civ. P. 60.02 is discretionary with the district court” and we review the district court’s decision to deny appellant’s motion for an abuse of that discretion. Losoya v. Richardson, 584 N.W.2d 425, 427 (Minn.App.1998) (citation omitted). Whether a party has committed fraud or misconduct is within the district court’s discretion as the fact finder and evaluator of the weight and credibility of the evidence. J.L.B. v. T.E.B., 474 N.W.2d 599, 603 (Minn.App.1991), review denied (Minn. Oct. 11, 1991). We review a district court’s findings of fact to determine whether they are clearly erroneous. Minn. R. Civ. P. 52.01.

A. Fraud

Appellant argues that the genetic tests which exclude him as the child’s father show that Turner committed fraud against him when she represented that appellant was the father of the child and the only possible father of the child.

Fraud by an adverse party may justify relief under Minn. R. Civ. P. 60.02(c), if the party alleging fraud establishes by clear and convincing evidence that the “adverse party engaged in fraud or other misconduct which prevented it from fully and fairly presenting its case.” Regents of Univ. of Minn. v. Medical Inc., 405 N.W.2d 474, 480 (Minn.App.1987); see J.L.B., 474 N.W.2d at 603; cf. Doering v. Doering, 629 N.W.2d 124, 129-30 (Minn.App.2001) (stating that the standard for reopening dissolution judgment on the basis of fraud under Minn.Stat. § 518.145, subd. 2(3), within one year after the entry of judgment, is ordinary fraud not fraud on the court), review denied (Minn. Sept. 11, 2001). The misconduct required by Rule 60.02(c) must not be collateral to, and must affect the ultimate issue(s) of, the case. See Regents of Univ. of Minn., 405 N.W.2d at 480.

It is undisputed that (a) Turner represented to appellant he was the father of the child; (b) as a result, appellant responsibly held the child out as his own and helped care for the child; (c) by affidavit, Turner made a sworn statement in 1997 to Ramsey County stating that appellant was the only possible father of the child; (d) this affidavit was attached to the papers served on appellant to initiate this paternity proceeding; and (e) while under oath at the paternity hearing, Turner unequivocally represented to the court that appellant was the father of the child. The record, however, also contains the results of genetic tests purportedly indicating that appellant cannot be the biological father of the child.

Thus, it is evident either that Turner’s representations to appellant and her sworn statements to Ramsey County and to the court were false or that the genetic tests were defective. Although the district court’s order denying appellant’s motion to vacate suggests that it implicitly determined that the genetic tests were defective, it made no finding to that effect and, on this record, we cannot determine how such a result was or could be reached; there was no evidentiary hearing and the record lacks any information regarding the genetic tests other than them results.

Moreover, although there is no explicit statement in the record by appellant (as opposed to his counsel, who does so state) that appellant stipulated to being the child’s father based on Turner’s statements, a close examination of the record not just allows, but compels this inference. Therefore, the possible falsity of Turner’s statements was not, under Regents of Univ. of Minn., “collateral” to the resolution of the paternity question and we reverse the district court’s summary rejection of appellant’s request for relief under Minn. R. Civ. P. 60.02(c), and remand for an evidentiary hearing on this issue.

The current proceeding could have been avoided if appellant had sought genetic tests before stipulating on the paternity question. This fact, however, cannot be used to preclude appellant from challenging the paternity adjudication. Turner made a series of statements on which appellant relied in stipulating to paternity, including but not limited to unequivocal, sworn statements to Ramsey County that appellant was the only possible father of the child and to the court that appellant was the father of the child. When Turner made these sworn statements, she was under oath. Minn.Stat. § 358.07(7), (10) (2000) (statutorily required oaths stating that witnesses must swear to tell the “whole truth” and that affiants must swear to tell the truth).

Given the nature of these sworn statements, to now penalize appellant for not seeking genetic tests before stipulating to paternity is to penalize him for not assuming Turner’s sworn statements were perjured or otherwise false. To hold that parties must preserve their rights by disbelieving sworn statements relating to the identity of the person with whom a woman conceived a child would result, we conclude, in a judicially mandated atmosphere of distrust and acrimony that is contrary to public policy strongly favoring stipulations in family cases. See, e.g., Maranda v. Maranda, 449 N.W.2d 158, 164 (Minn.1989) (stipulated divorce decrees are favored); Tomscak v. Tomscak, 352 N.W.2d 464, 466 (Minn.App.1984) (noting that stipulations are favored).

Thus, appellant’s failure to seek genetic tests before stipulating to paternity cannot now preclude him from alleging that those tests showed Turner’s statements may be false. We also note that because the current record lacks evidence addressing the validity of the genetic tests, the district court’s implicit finding that they were invalid is unsupported and, we remand for the district court to conduct an evidentiary hearing to address appellant’s fraud allegation.

B. Newly Discovered Evidence

Appellant also argues that the genetic tests constitute newly discovered evidence under Rule 60.02(b) entitling him to vacation of the paternity adjudication. Newly discovered evidence must be relevant and admissible at trial and likely to have an effect on the result of a new trial; the evidence must not be merely collateral, impeaching, or cumulative. Regents of Univ. of Minn., 405 N.W.2d at 479-79 (citation omitted). Rule 60.02(b) allows relief for newly discovered evidence that “due diligence” would not have discovered in time to seek a new trial. Due diligence requires a party to employ “reasonable investigation efforts” to find and produce the evidence at trial. Id.

As noted above, parties, particularly those to litigation or other proceedings addressing family related rights, are generally entitled to believe the sworn statements of other parties to those proceedings relating to the identity of the person with whom a woman conceived a child. Therefore, appellant’s earlier waiver of genetic testing did not constitute a refusal and failure to exercise “due diligence” to seek paternity-related evidence and we reverse the district court’s summary rejection of appellant’s request under Minn. R. Civ. P. 60.02(b) to vacate the paternity adjudication on the basis of newly discovered evidence. On remand, the district court shall also address this aspect of appellant’s motion. See Regents. of Univ. of Minn., 405 N.W.2d at 478-79 (addressing vacating judgments under Minn. R. Civ. P. 60.02(b) for newly discovered evidence).

C. Other Bases Justifying Relief

Minn. R. Civ.. P. 60.02(f) may provide relief from a judgment only under “exceptional circumstances” and may only afford a party “relief in those circumstances exclusive of the specific areas addressed by clauses (a) through (e).” Chapman v. Spec. Sch. Dist. No. 1, 454 N.W.2d 921, 924 (Minn.1990) (citation omitted); see also Sommers v. Thomas, 251 Minn. 461, 466-67, 88 N.W.2d 191, 195-96 (1958).

Here, the district court did not address whether appellant’s request for relief under Rule 60.02(f) was based on a reason covered by Rule 60.02(a)-(e). Therefore, on remand, the district court shall address whether the basis for appellant’s request for relief under Rule 60.02(f) is for something that would allow relief under Rule 60.02(a)-(e) and address the merits of appellant’s 60.02(f) request only if its basis is distinct from the bases for relief under those other provisions of the rule. Chapman, 454 N.W.2d at 924; Clay, 397 N.W.2d at 578.

IV.

When denying appellant’s motion to vacate the adjudication order, the district court concluded that the interests of the child “are paramount” and that it would not be in the interests of the child to vacate the paternity adjudication. On appeal, appellant and Ramsey County disagree about whether the child’s best interests are relevant when deciding whether to vacate the paternity adjudication. Therefore, we must also decide whether, on remand, the district court may again consider the child’s best interests.

The objective of paternity proceedings is to correctly identify the biological father of a child. See Spaeth v. Warren, 478 N.W.2d 319, 322 (Minn.App.1991), review denied (Minn. Jan. 30, 1992). Given that biological paternity is an objective fact, this court has observed that

neither Minnesota’s parentage act nor the [Uniform Parentage Act] suggests that a determination of paternity should include analysis of whether a child’s best interests would be served by the adjudication.

Id.; see also id. at 323 (noting that a “child’s best interests simply are irrelevant to the biological determination”). The failure of a paternity proceeding to attain its biological objective, however, does not necessarily render the resulting paternity adjudication legally defective. See generally Clay v. Clay, 397 N.W.2d 571, 575-79 (Minn.App.1986) (affirming district court’s refusal to reopen paternity determination made in dissolution judgment where former husband later produced blood tests showing he was not father of child), review denied (Minn. Feb. 17, 1987); cf. R.B., 536 N.W.2d at 635 (stating “[b]iology alone does not give a father a constitutionally protected interests in a paternity determination”).

There are obvious and significant differences between adjudicating paternity and seeking to vacate a paternity adjudication, and those differences are especially pronounced for a child whose paternity is at issue. Therefore, that a child’s best interests are irrelevant to the determination of the objective fact of biological paternity does not necessarily mean those best interests are irrelevant to the question whether to grant relief from an existing (albeit possibly biologically incorrect) paternity adjudication. A child’s best interests, however, are not part of the analysis used to determine whether to grant relief under Rule 60.02. See, e.g., Finden v. Klaas, 268 Minn. 268, 271, 128 N.W.2d 748, 750 (1964) (addressing the requirements for relief under Minn. R. Civ. P. 60.02). Additionally, here, appellant’s motion to vacate the paternity adjudication is not accompanied by a motion to declare the nonexistence of the father-child relationship or an action to declare the nonexistence of the father-child relationship presumed under Minn.Stat. § 257.55, subd. 1. And appellant admits he may still be adjudicated the child’s father. Indeed, appellant’s argument is not that he is not the child’s legal father but that Turner’s arguably false sworn statements should not preclude him from arguing whether he should be the child’s father. We therefore hold that, on remand, when determining whether to vacate the paternity adjudication under Minn. R. Civ. P. 60.02, the district court shall not consider the child’s best interests.

DECISION

Appellant’s motion to vacate the paternity adjudication is not identical to either an action under Minn.Stat. § 257.57, subd. 2, to declare the nonexistence of the father-child relationship presumed under Minn. Stat. § 257.55, subd. 1, or to declare the nonexistence of the father-child relationship. Therefore, we affirm the district court’s refusal to appoint a guardian ad litem for the child. Additionally, because appellant’s stipulation to paternity was based on Turner’s unequivocal representations and sworn statements, and because the genetic tests call those-representations and sworn statements into question, we reverse the district court’s summary denial of appellant’s motion to vacate and remand for the district court to hold a evidentiary hearing and to address appellant’s motion to vacate based on the evidence adduced at that hearing. We affirm the district court’s denial of relief for fraud on the court. We express no opinion on how to decide the remanded questions.

Affirmed in part, reversed in part, and remanded.

      . For purposes of this appeal, we will assume that an attempt to declare the nonexistence of a father-child relationship presumed to exist under Minn.Stat. § 257.55, subd. 1, would require appointment of a guardian ad litem.

      . This court has previously stated that Minn. Stat. § 257.57, subd. 1(b), not Minn.Stat. § 548.14, is the “preemptive sole method available to a party to raise the question of the non-paternity of one presumed to be the natural father of a child.” Clay v. Clay, 397 N.W.2d 571, 579 (Minn.App.1986), review denied (Minn. Feb. 17, 1987). Clay however, must be read in context. See Nadeau v. Melin, 260 Minn. 369, 375, 110 N.W.2d 29, 34 (1961) ("A decision must be construed in the light of the issue before the court”). In Clay, the statement that Minn.Stat. § 257.57, subd. 1(b) is the “sole" method to question paternity was made in the context of a husband's challenge to a paternity adjudication occurring in a dissolution judgment where the challenge was not raised until after the period to challenge presumed paternity under Minn. Stat. § 257.57, subd. 1(b) had expired; the husband was essentially attempting to use Minn.Stat. § 548.14 to circumvent the unconditional three-year limitations period in Minn. Stat. § 257.57, subd. 1(b). This court rejected that attempt, noting that under Minn.Stat. § 645.26, a specific statute prevails over a general statute. Clay, 397 N.W.2d at 579. Here, however, there is no dissolution judgment and there is no statute of limitations question.

      . Although the crux of appellant's argument is that Turner's allegedly false statements precluded him from presenting his case on the paternity issue, he admits that he could still be adjudicated the child's father. Therefore, we cannot say that this case involves the “grossly unfair” result required by the standard for "fraud on the court.” See Maranda, 449 N.W.2d at 164 (addressing “fraud on the court”). We therefore affirm the district court's denial of relief on that issue.

      . This is clearly not a case where best-interests analysis may apply to resolve competing considerations in determining paternity between multiple presumed fathers. See In re Welfare of C.M.G., 516 N.W.2d 555, 560 (Minn.App.1994) (stating that "a child's best interests is a valid policy factor in resolving a conflict between competing paternity presumptions”); Kelly v. Cataldo, 488 N.W.2d 822, 826 (Minn.App.1992), review denied (Minn. Sept. 15, 1992) (where child is a necessary party to a paternity action or there are competing presumptions of paternity, a guardian ad litem must be appointed and must consider the child’s best interests). Nor is it a case with a unique procedural posture, which would take it out of the general rule. See Murphy v. Myers, 560 N.W.2d 752, 756 (Minn.App.1997) (district court did not err by considering child’s best interests when rejecting biological father’s fraud and misrepresentation defenses in paternity action); Nicholson v. Maack, 400 N.W.2d 160, 165 (Minn.App.1987) (guardian ad litem must consider the child's best interests before initiating a paternity action on behalf of the child).


author: LANSING, Judge.

text:
    PIONEER PEAT, INC., Respondent, v. QUALITY GRASSING & SERVICES, INC., Defendant, and Pioneer Peat, Inc., Respondent, v. Richard Colyer, et al., Appellants.
    No. C0-02-413.
    Court of Appeals of Minnesota.
    Nov. 26, 2002.

      Rex A. Hammarback, Hammarbaek Law Office, East Grand Forks, MN, for respondent.
    Patrick R. Morley, Kraig A. Wilson, Morley Law Firm, Ltd., Grand Forks, ND, for appellants.
    Considered and decided by LANSING, Presiding Judge, RANDALL, Judge, and WILLIS, Judge.
   OPINION

LANSING, Judge.

This appeal involves a dispute between a peat-moss supplier and a company that blends topsoils for golf-course greens. The district court found that the contract for a shipment of peat did not create a warranty by sample, the buyer did not reject the peat in a timely manner, the supplier was denied a reasonable opportunity to cure, and the ambiguity in the attorneys’ fees provision should be construed against the supplier. The record supports the district court’s findings of fact which, in turn, support its legal conclusions, and we affirm.

FACTS

Pioneer Peat, Inc. produces and sells peat moss, which is used to construct golf-course greens. Pioneer Peat markets the name of the peat it sells as Dakota Reed Sedge Peat (Dakota Peat). Richard Col-yer owns Golf Agronomics, a company that blends topsoils for golf-course greens. Golf Agronomics purchases peat moss to blend with sand to obtain a “root-zone mix” that is placed on golf-course greens to ensure proper and consistent drainage on the greens.

Colyer contacted Jerry Schmitz at Pioneer Peat in February 1999 to purchase Dakota Peat moss to use on a golf course where the project engineer’s specifications required Dakota Peat. During this conversation, Colyer advised Schmitz that he needed to receive a shipment of peat “early” so that the peat could be calibrated with sand to determine the proper root-zone mix for the project. Because he did not have enough storage space for an entire peat shipment, Colyer did not initially order all of the peat he needed.

Golf Agronomics received the first shipment of Dakota Peat in March 1999. Samples were taken from the shipment and mixed with sand in a blending machine to create an appropriate root-zone mix. In June 1999, Golf Agronomics ordered another shipment of Dakota Peat. Raw samples of peat were taken from this shipment too and blended with the same sand, in an attempt to create the proper root-zone mix, based on the calibration of the previous shipment. Test results showed that the fiber content in the peat changed from the first shipment to the second, and that the change affected the root-zone mix. On July 26, 1999, Colyer informed Schmitz that the project architect rejected the second shipment of Dakota Peat. About the same time, Colyer substituted Canadian sphagnum peat for the project. After July 26, Pioneer Peat did not offer to replace the second shipment of Dakota Peat, and Golf Agronomics refused to pay for that shipment.

Pioneer Peat sued Golf Agronomics and Colyer in November 1999 to collect payment for the second shipment. Golf Agro-nomics denied responsibility for payment, contending that Pioneer Peat breached an express warranty by sample, an implied warranty of merchantability, an implied warranty of fitness for a particular purpose, and failed to provide peat that complied with United States Golf Association (USGA) specifications.

Following trial, the district court found that no implied, express, or sample warranties had been created under the contract, that Dakota Peat met USGA specifications, that Golf Agronomics failed to reject the peat in a timely manner, and that Golf Agronomics did not give Pioneer Peat an opportunity to cure. The court ordered payment for the second shipment and payment of $500 in attorneys’ fees. Golf Agronomics appeals the district court’s conclusions on the warranty by sample, untimely rejection, and opportunity to cure. Pioneer Peat challenges the amount of attorneys’ fees.

ISSUES

I. Did Pioneer Peat create an express warranty by sample?
II. Did Golf Agronomics notify Pioneer Peat in a timely manner of its intention to reject the second peat shipment?
III. Did Golf Agronomics provide Pioneer Peat an opportunity to cure?
IV. Did the district court err in interpreting the contract provision on attorneys’ fees?

ANALYSIS

This court will not set aside a district court’s findings of fact unless they are clearly erroneous. Minn. R. Civ. P. 52.01. Clearly erroneous means “manifestly contrary to the weight of the evidence or not reasonably supported by the evidence as a whole.” N. States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975). On established facts, whether a warranty is created is an issue of law. Dworsky v. Vermes Credit Jewelry, Inc., 244 Minn. 62, 66, 69 N.W.2d 118, 122 (1955).

I

Colyer and Golf Agronomics (collectively referred to as Golf Agronomics) argue that the district court erred in concluding that the first shipment of Dakota Peat did not create a warranty by sample for the second Dakota Peat shipment. Any sample or model which is made part of the basis of the bargain creates an express warranty that the whole of the goods shall conform to the sample or model. Minn.Stat. § 336.2-313(l)(c) (1998). Express warranties rest on “dickered” aspects of the individual bargain. Minn.Stat. Ann. § 336.2-313 U.C.C. cmt. at 1 (2002). To constitute a sale by sample, it must appear that the parties contracted solely in reference to the sample or article exhibited, and that both mutually understood they were dealing with the sample with an understanding that the bulk was like it. Day v. Raguet, 14 Minn. 273, 282, 14 Gil. 203, 210 (1869). In determining whether a sample is intended to become a basis of the bargain, the analysis centers on “whether the seller has so acted with reference to the sample as to make him responsible that the whole shall have at least the values shown by it.” Minn.Stat. § 336.2-313 cmt. 6.

No evidence in the record establishes that Pioneer Peat and Golf Agronomics contracted solely in reference to a sample, that they mutually understood they were dealing with a sample, or that the composition of the first shipment formed a basis for the bargain. In other words, the parties did not “dicker” about whether the first peat shipment constituted a sample. Cf. Sass v. Spradlin, 66 Ill.App.3d 976, 23 Ill.Dec. 670, 384 N.E.2d 464, 467 (1978) (stating express warranties are created when parties dicker over the terms of a contract); see also Bowen v. Young, 507 S.W.2d 600, 605 (Tex.App.1974) (stating express warranties rest on dickered aspects of the individual bargain and clearly go to the essence of the bargain). In addition, the record supports the district court’s finding that Pioneer Peat’s sole representation concerning the sample was that the peat would have an organic content of at least 85%, the required USGA standard. It is undisputed that both shipments of Dakota Peat met this requirement.

II

Alternatively, Golf Agronomics argues that the second shipment of Dakota Peat was nonconforming and was rejected in a timely manner. Rejection of goods must occur within a reasonable time after delivery or tender. Minn.Stat. § 336.2-602(1) (1998). Rejection is ineffective unless the buyer seasonably notifies the seller. Id. An action is taken seasonably when it is taken within a reasonable time. Minn.Stat. § 336.1-204(3) (1998). Absent a contract provision defining the time allowed for rejection, a reasonable time for rejection is a question of fact. DeWitt v. Itasca-Mantrap Co-op. Elec. Ass’n, 215 Minn. 551, 559, 10 N.W.2d 715, 719 (1943).

Golf Agronomics rejected the second shipment approximately one month after it was received. Golf Agronomics claims it notified Pioneer Peat of the rejection as soon as the project architect told the company that he would not accept the Dakota Peat. But Golf Agronomics was blending a substitute peat for the remainder of the project at the same time it rejected the second shipment of Dakota Peat. The district court could reasonably infer that Golf Agronomics knew the Dakota Peat was unsuitable and had ordered the substitute goods well before they notified Pioneer Peat of the rejection. The district court’s finding that rejection did not occur within a reasonable time is not clearly erroneous.

Ill

Golf Agronomics further argues that because Pioneer Peat made no attempt to cure the defects of the second shipment of peat after the July 26 rejection, the district court erred in finding that Pioneer Peat was not given an opportunity to cure. When a buyer rejects a nonconforming tender, which the seller had reasonable grounds to believe would be acceptable with or without money allowance, the seller may, on seasonably notifying the buyer, have a further reasonable time to substitute a conforming tender. Minn. Stat. § 336.2-508(2) (1998). An action is taken seasonably when it is taken within a reasonable time. Minn.Stat. § 336.1-204(3).

Golf Agronomics was already blending a substitute peat when it rejected the Dakota Peat. This precluded Pioneer Peat from having a reasonable opportunity to cure. Cf. Durfee v. Rod Baxter Imports, Inc., 262 N.W.2d 349, 355 (Minn.1977) (finding that when a dealership had a reasonable opportunity to cure a defective automobile, further attempts to cure were unseasonable). Consequently, the district court did not err in concluding that Pioneer Peat was denied a reasonable opportunity to cure.

IY

Pioneer Peat challenges the district court’s conclusion that the contract provision imposing attorneys’ fees is ambiguous and that the ambiguity should be resolved against Pioneer Peat as the drafter. A writing is ambiguous if, judged by its language alone and without resort to extrinsic evidence, it is reasonably susceptible of more than one meaning. Metro Office Parks Co. v. Control Data Corp., 295 Minn. 348, 351, 205 N.W.2d 121, 123 (1973). The determination of whether an ambiguity exists is a question of law. Tur ner v. Alpha Phi Sorority House, 276 N.W.2d 63, 66 (Minn.1979). Courts are required to give the words of an instrument their plain and ordinary meaning during construction. Id. at 67. And any ambiguity in the language of a contract will be resolved against the party who drafted the language. Cherne Indus., Inc. v. Grounds & Assocs., Inc., 278 N.W.2d 81, 89 (Minn.1979).

The contract provides for attorneys’ fees if Pioneer Peat must hire an attorney to collect payments due under the contract:

In the event it becomes necessary for our firm to employ an attorney or collection company to collect this amount, you will pay any/all attorney fees and collection agency fees in the amount of 25% or $500.00, whichever is applicable, including court costs and interest at the rate of 2% PER MONTH (24% ANNUALLY) on amounts due and payable.

The district court found the contract ambiguous as to whether the buyer is obligated to pay all attorneys’ fees, 25% of the attorneys’ fees, or $500. The court construed the contract provision against Pioneer Peat and awarded $500 in attorneys’ fees. We conclude that the district court did not err in its determination of ambiguity, and we affirm.

DECISION

The district court did not err in concluding that Pioneer Peat did not create a warranty by sample, that Golf Agronomics failed to reject the second shipment of Dakota Peat in a timely manner, and that Golf Agronomics did not give Pioneer Peat a reasonable opportunity to cure. Finally, because the court reasonably concluded that the contract language on attorneys’ fees was ambiguous, we affirm the award of attorneys’ fees.

Affirmed.


text:
    2002 ND 182
    In the Matter of DISCIPLINARY ACTION AGAINST Darold A. ASBRIDGE, a Member of the Bar of the State of North Dakota. Disciplinary Board of the Supreme Court of the State of North Dakota, Petitioner, v. Darold A. Asbridge, Respondent.
    No. 20020271.
    Supreme Court of North Dakota.
    Nov. 21, 2002.
   PER CURIAM.

[¶ 1] Darold A. Asbridge was admitted to practice law in the courts of North Dakota on March 26, 1976, and since that time his name has appeared on the roll of attorneys.

[¶ 2] A Petition for Discipline was served on Asbridge on August 5, 2002. The Report of the Hearing Panel and Stipulation and Consent to Discipline were filed October 1, 2002, and referred to the Supreme Court under N.D.R. Lawyer Dis-cipl. 3.1F(2).

[¶ 3] In 1997, Neil Miller hired As-bridge to represent him in a dispute concerning a shotgun. Miller wanted to return the shotgun for a refund and gave Asbridge the papers relating to the purchase of the shotgun. Miller tried to contact Asbridge about the status of this matter but was put off by Asbridge.

[¶ 4] In 1999, Asbridge told Miller he had written a letter to the gun dealer which was sent by certified mail. Miller did not receive a copy of the letter or proof that it had been sent. Asbridge finally told Miller that the letter had been lost in the mail.

[¶ 5] In 2000, Miller requested his papers back. After several months, Miller was told Asbridge had lost his papers. In 2001, Miller found a buyer for the shotgun and incurred a loss of $3,400.

[¶ 6] By letter dated March 21, 2002, Asbridge was informed that Miller had filed a complaint against him, and under N.D.R. Lawyer Discipl. 3.1D(3), Asbridge had a duty to prepare a response and serve it on the investigator. Asbridge did not serve a response on the investigator nor did he respond to a phone message from her.

[¶ 7] Under N.D. Stds. Imposing Lawyer Sanctions 9.22(a), prior disciplinary offenses may be considered an aggravating condition. Asbridge has previously been disciplined, by consent probation, for violation of N.D.R. Lawyer Discipl. 1.2A(2) and (11).

[¶ 8] Asbridge’s conduct violated N.D.R. Prof. Conduct 1.3, Diligence, 1.4, Communication, 1.15, Safekeeping Property, 8.1, Bar Admission and Disciplinary Matters, and N.D.R. Lawyer Discipl. 1.2A(8), which provides that a lawyer shall not willfully fail to respond to a lawful demand for information from a disciplinary authority.

[¶ 9] ORDERED, the Stipulation and Consent to Discipline is accepted, the Report of the Hearing Panel is adopted, and Darold A. Asbridge is SUSPENDED from the practice of law for a period of 80 days, effective January 1, 2003.

[¶ 10] FURTHER ORDERED, Darold A. Asbridge pay restitution in the amount of $3,400 to Neil Miller, to be paid through the office of Disciplinary Counsel on or before the conclusion of the 30-day suspension.

[¶ 11] FURTHER ORDERED, Darold A. Asbridge pay the costs and expenses of the disciplinary proceedings in the amount of $250.

[¶ 12] FURTHER ORDERED, Darold A. Asbridge comply with N.D.R. Lawyer Discipl. 6.3F.

[¶ 13] GERALD W. VANDEWALLE, C.J., CAROL RONNING KAPSNER, MARY MUEHLEN MARING, WILLIAM A. NEUMANN and DALE V. SANDSTROM, JJ., concur.


author: KONENKAMP, Justice.

text:
    2002 SD 132
    Landers HARRIS, Plaintiff and Appellant, v. JEFFERSON PARTNERS, L.P. dba Jackrabbit Bus Lines, Defendant and Appellee.
    No. 22198.
    Supreme Court of South Dakota.
    Considered on Briefs Aug. 26, 2002.
    Decided Oct. 23, 2002.

      Richard A. Engels of Abourezk'Law Offices, Sioux Falls, South Dakota, Attorneys for plaintiff and appellant.
    Michael A. Hauck of Bangs, McCullen, Butler, Foye & Simmons, Sioux Falls,
    South Dakota, Attorneys for defendant and appellee.
   KONENKAMP, Justice.

[¶ 1.] Injured in a traffic accident while riding a bus, a passenger sued the bus company and its driver for the tort of intentional infliction of emotional distress. The passenger alleged that following the accident, the bus company and its driver committed an extreme outrage in refusing to summon emergency medical care, in denying him transportation back to the bus station, and in failing to provide him a return ticket back to his home town. In his lawsuit, the passenger insisted that because this conduct was committed by a common carrier, the standards for proving intentional infliction of emotional distress were relaxed. Concluding that this conduct did not meet the stringent requirements for this tort, the circuit court granted the bus company’s motion for summary judgment. Because the elements necessary to prove intentional infliction of emotional distress are the same whether the defendant is a common carrier or not, and because this conduct did not amount to an extreme outrage, we affirm.

A.

Background

[¶ 2.] Plaintiff Landers Harris, a 65-year-old African American, purchased a ticket for a trip on Jackrabbit Bus Lines from Sioux Falls, South Dakota, to Wichita, Kansas. At 12:30 a.m., on October 1, 2000, the bus was hit broadside by another vehicle within the city limits of Sioux City, Iowa. As the bus could not be moved from the scene of the accident, the driver, Leonard Biever, instructed the passengers to walk a distance of some two blocks to the bus station to arrange for alternate transportation to their respective destinations. Harris, however, had suffered a groin injury in the collision and was unable to walk even so short a distance. In pain, Harris asked Biever to call an ambulance. Biever refused, telling Harris that he had already called the police and that Harris should sit on the curb and await their arrival. Paramedics from the Sioux City Fire Department soon arrived at the scene of the accident. After they checked Harris’s blood pressure and found it elevated, they called for an ambulance to take him to the emergency room at Mercy Medical Center.

[¶ 3.] At the hospital, Harris complained of testicular pain. He was given Tylenol and released. Following his treatment, Harris waited in vain for someone from Jackrabbit to call to tell him what arrangements could be made to allow him to continue his trip or to return to Sioux Falls. Some four hours later, Harris, through his own efforts, learned the departure time of the next bus travelling from Sioux City to Sioux Falls. Again, through his own efforts, Harris arranged transportation to the Sioux City bus terminal only to learn that Jackrabbit would not furnish him a free ride back to Sioux Falls. Injured, through no fault of his own, in a collision that occurred while he was a passenger on a common carrier, and unable to continue his journey to Kansas, Harris had to purchase a ticket to return to his home town.

[¶ 4.] Harris retained an attorney who initiated negotiations with the insurance company for the person who collided with the bus. Upon reaching a settlement, Harris signed a release. Under the terms of the release, Harris forever discharged the driver and his insurance company, as well as “all other persons, firms or corporations liable or, who might be claimed to be liable ... from any and all claims” for injuries he suffered in the accident. After-wards, Harris brought a negligence action against Jackrabbit, alleging specifically that the company had breached the duty of care owed by a common carrier to its passengers and listing the several indignities he suffered after the accident. Harris’s complaint did not allege the tort of intentional infliction of emotional distress (IIED). Jackrabbit answered, averring, among other things, that it was not strictly liable to Harris for safe passage and that neither it nor its agents were in any way negligent.

[¶ 5.] Jackrabbit moved for summary judgment, asserting, first, that, as to Jackrabbit’s liability to Harris, there was no material fact at issue, and, second, that the release Harris signed effectively discharged Jackrabbit from additional liability. On June 18, 2001, the circuit court held a hearing on Jackrabbit’s motion for summary judgment. At the same time, Harris moved to amend his complaint to add a cause of action for IIED. His motion was granted, and he later served an amended complaint. Then, on July 19, 2001, the court ruled on three issues: first, South Dakota law governed the interpretation of the release and, second, in accordance with our decision in Flynn v. Lockhart, 526 N.W.2d 743, 745-46 (S.D.1995), the release was effective to bar all claims asserted against Jackrabbit as a joint tort-feasor with the driver who collided with the bus. Thus, the court dismissed the negligence action. On the third issue, the suit for IIED, the court ordered additional briefing. The court observed that although the parties had briefed the IIED question, the plaintiff had not explained how his claim that a common carrier must exercise a higher degree of protection for its passengers relates to his suit for IIED. Harris submitted a supplemental brief and a second affidavit in which he repeated facts already in the record (a summary of which has been provided above) and, in addition, explained how Jaekrabbit’s conduct subsequently affected him.

[¶ 6.] Following these submittals, the court issued its final memorandum opinion in September. In that decision, the court ruled that Harris had failed to establish two of the four elements of IIED required under South Dakota law, despite Harris’s argument that, as a common carrier, Jackrabbit was expected to meet a higher standard of care.

[¶ 7.] On appeal, Harris brings the following issues: (1) “Whether the trial court violated SDCL 15 — 6—56(c) when it granted summary judgment to the defendant on the issue of IIED without holding any hearing after the date that a cause of action for IIED was added to this case.” (2) “Whether the trial court erred in its grant of summary judgment when it ruled that Jackrabbit’s conduct toward Harris was not outrageous and reckless.” (3) “Whether Jaekrabbit, as a common carrier, owes a greater duty of care to its passengers, which additional duty has a bearing upon establishment of the elements of IIED.” We consider Issues 2 and 3 together.

B.

Failure to Hold Second Summary Judgment Hearing

[¶ 8.] Harris argues that SDCL 15-6-56(c) requires that a separate hearing be held on the IIED cause of action, a claim that did not appear in his initial complaint and could not, therefore, have been addressed in the June 18 hearing. Our summary judgment statute provides, in part:

The motion shall be served at least ten days before the time fixed for the hearing. The adverse party prior to the day of hearing may serve opposing affidavits. The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

SDCL 15-6-56(c). Harris concludes that the court erred in failing to hold a second hearing on the IIED cause of action.

[¶ 9.] This argument is without merit. To hold otherwise, we would require trial courts to conduct supplemental summary judgment hearings, even when the parties have nothing to add. All the relevant facts were before the court at the time it made its final decision, and the matter had been fully briefed by counsel, with both initial and supplemental briefs. Furthermore, counsel points to nothing that could have been submitted at a hearing that was not already before the court. This is ample confirmation that the parties had nothing further of substance to offer on the subject. Accordingly, the circuit court did not violate SDCL 15-6-56(e).

C.

Extreme and Outrageous Conduct by Common Carrier

[¶ 10.] Harris contends both that Jackrabbit committed the tort of IIED and that this tort is “altered by the fact that Jackrabbit is a common carrier.” Although he conceded to the circuit court that the traditional elements of IIED are not changed when applied against a common carrier, he contends that Jackrabbit owed a greater duty of care to its passengers because “conduct that may not be outrageous or reckless if done by a member of the public in general may very well be outrageous and reckless if done by a common carrier to a passenger.” Harris cites no authority for this proposition. We think these arguments confuse the elements of two different torts: IIED and gross insult.

[¶ 11.] We begin by examining the tort of IIED. The tort is proved by establishing that the defendant (1) by extreme and outrageous conduct, (2) acted intentionally or recklessly to cause the plaintiff severe emotional distress, (3) which conduct in fact caused the plaintiff severe distress, and (4) the plaintiff suffered an extreme, disabling emotional response to the defendant’s conduct. Henry v. Henry, 2000 SD 4, ¶ 6, 604 N.W.2d 285, 288. The question whether the defendant’s conduct was extreme and outrageous is initially for the trial court. Richardson v. East River Elec. Power Coop., 531 N.W.2d 23, 27 (S.D.1995). Comment d to the Restatement (Second) of Torts § 46 (1965) explains that recovery is permissible only where the actor’s conduct was “extreme and outrageous.” Proof under this tort must exceed a rigorous benchmark. The conduct necessary to form intentional infliction of emotional distress must be “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and be regarded as atrocious, and utterly intolerable in a civilized community.” Id. See Stene v. State Farm Mut. Auto. Ins. Co., 1998 SD 95, ¶ 32, 583 N.W.2d 399, 404; Tibke v. McDougall, 479 N.W.2d 898, 906-07 (S.D.1992). Liability for this tort will “not extend to mere insults, indignities, threats, annoyances, petty oppression, or other trivialities.” Restatement (Second) of Torts § 46 cmt. d.

[¶ 12.] On the other hand, the tort of gross insult is defined in the Restatement (Second) of Torts § 48 (1965). To establish the claim, a plaintiff must prove that (1) the plaintiff was a patron using a common carrier’s facilities; (2) the plaintiff received “gross insults” from the carrier’s servant, acting in the scope of employment; and (3) the gross insults must be reasonably deemed to be offensive. Id. The comments provide further explanation.

Any public utility may of course be liable for the infliction of severe emotional distress by extreme and outrageous conduct, under the rule stated in § 46. The rule stated in this Section goes further and makes such a defendant liable for conduct which falls short of extreme outrage, but is merely insulting.

Id. at cmt. c (emphasis added). Of course, the rule in § 48 “does not extend to mere trivialities”; however, “the obvious condition of the plaintiff must ... be taken into account in determining whether the conduct is grossly insulting....” Id.

[¶ 13.] Ample case law in other jurisdictions supports § 48’s special rule for common carriers. Bricks v. Metro Ambulance Serv., Inc., 177 Ga.App. 62, 338 S.E.2d 438, 443 (1985); Yeager v. Local Union 20, Teamsters, Chauffeurs, Warehousemen, & Helpers of America, 6 Ohio St.3d 369, 453 N.E.2d 666 (1983). “Insults amounting to less than extreme outrage are actionable only when the defendant enjoys a special relationship to the plaintiff that compels a higher than normal duty of care, as when the defendant is a common carrier, innkeeper, or public utility.... ” Waldon v. Covington, 415 A.2d 1070, 1076, n. 21 (D.C.App. 1980); Haser v. Pape, 77 N.D. 36, 39 N.W.2d 578, 581 (N.D.1949).

[¶ 14.] The key difference between the torts of IIED and gross insult is that IIED, per § 46, covers “extreme and outrageous conduct intentionally or recklessly eaus[ing] severe emotional distress,” whereas § 48 covers “gross insults” that reasonably offend a common carrier’s patrons. The question, then, becomes which tort did Harris plead?

[¶ 15.] Count Two of Harris’ amended complaint is captioned “IIED.” The pertinent passages from the complaint (with emphases added) are as follows:

13. Defendant’s agents recklessly provided no assistance to Plaintiff, leaving him, in his injured state, to fend for himself in an unfamiliar town at night.
19. The Defendant, holding itself out as a public transport company, had a duty to use the highest degree of care to establish and implement procedures to effectively meet passengers’ medical, transportation and other needs in the event of a foreseeable emergency such as a collision.
20. Defendant failed in that duty, resulting in Plaintiffs emotional injuries.
21. The Defendant’s utter indifference to Plaintiffs requests for help, and Defendant’s complete failure to offer any kind of assistance whatsoever at any point in time after the accident ... constitutes extreme and outrageous conduct.
22. The Defendant’s extreme and outrageous conduct caused the Plaintiff to suffer severe emotional distress ....
23. The Defendant’s extreme and outrageous conduct caused the Plaintiff to suffer an extreme disabling emotional response....
24. Plaintiff has undergone pain and suffering both of body and of mind as a result of Defendant’s negligence.

[¶ 16.] Aside from the irrelevant mention of negligence, Harris’s amended complaint speaks explicitly and unequivocally of “extreme and outrageous conduct” and not of “gross insults.” Nonetheless, the complaint does speak of the higher duty of care that a common carrier owes its passengers and does allege that Jaekrabbit breached that duty. Under our liberal pleading rules, this would perhaps be sufficient to allege the tort of gross insult. However, in his appellate brief, Harris asserts that this higher duty of care “has a bearing upon establishment of the elements of IIED.” Nowhere in his brief does Harris even mention § 48, nor does he direct us to any cases that would support a claim that Jaekrabbit committed the tort of gross insult. Thus Harris’s cause of action cannot be understood otherwise than as a claim of IIED, which allows for no common-carrier exception.

[¶ 17.] For Harris to prevail on his IIED claim, the conduct of Jaekrabbit personnel would have to be extreme and outrageous, committed intentionally or recklessly, in order to satisfy the first and second elements of that tort. Viewing the facts in a light most favorable to Harris, we consider the following: (a) Harris’s obvious condition (his injury, his minority status, and his age) and (b) the onerousness, under the circumstances, (i) of responding to his request to call for an ambulance, (ii) of providing him transportation back to the Sioux City bus station, and (iii) of giving him free passage back to his home. The question is whether the conduct of Jaekrabbit’s personnel (particularly that of driver Biever) was an extreme outrage.

[¶ 18.] It is true, as Professors Prosser and Keeton explain, that one “basis on which extreme outrage can be found is the defendant’s knowledge that the plaintiff is especially sensitive, susceptible and vulnerable to injury through mental distress at the particular conduct.” The Law of Torts, Ch. 2, § 12, 62 (5th ed 1984). Nonetheless, even taking into account Harris’s injured condition, we cannot say that this conduct was “so extreme in degree as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” Tibke, 479 N.W.2d at 907. It was inconsiderate behavior, perhaps even callous indifference, but it was not an extreme outrage. It follows that the circuit court, correctly finding no reason to depart from the standard formulation of the elements of IIED, required Harris to bear the appropriate burden of proof.

[¶ 19.] Affirmed.

[¶ 20.] GILBERTSON, Chief Justice, and SABERS, and ZINTER, Justices, and AMUNDSON, Retired Justice, concur.

      . Jackrabbit Bus Lines is the business name of Jefferson Partners, a limited partnership registered in Delaware and headquartered in Minnesota.

      . The bus was proceeding northbound along Jackson Street and, having the right of way, was more than half way through the intersection with 5th Avenue, when an eastbound vehicle driven by one Sap Ung, a Nebraska resident, entered the intersection against a red light and crashed into the bus.

      . Our settled standard of review for summary judgments has been set out in numerous cases and need not be recited again here. See Kobbeman v. Oleson, 1998 SD 20, ¶ 4, 574 N.W.2d 633, 635. As statutory interpretation is a question of law, we review statutes without deference to the circuit court's interpretation. Satellite Cable Servs., Inc. v. Northern Elec. Coop., Inc., 1998 SD 67, ¶ 5, 581 N.W.2d 478, 480.

      . Thus, “language addressed to a pregnant or a sick woman may be actionable where the same words would not be if they were addressed to a United States Marine.'' Restatement (Second) of Torts § 48 cmt. c.