author: ANDERSON, Judge.

text:
    Anissa Maria GUZMAN, a minor, by Rebecca Z. LOSOYA, her guardian, Appellant, Alicia Rose Losoya, Appellant, v. U S WEST, INC., a Delaware corporation, Respondent, Brian J. Anderson, Defendant, v. Lindsay Meredith Mailer, et al., Third Party Defendants.
    No. C9-03-310.
    Court of Appeals of Minnesota.
    Aug. 19, 2003.

      Robert A. Awsumb, R.A. Awsumb & Associates, PLC, St. Paul, MN, for appellant Guzman.
    Mark W. Malzahn, Malzahn & Associates, Ltd., Anoka, MN, for appellant Alicia Losoya.
    Sarah L. Brew, Greene Espel, P.L.L.P., and Jon P. Parrington, Pustorino, Tilton, Parrington & Lindquist, PLLC, Minneapolis, MN, for respondent.
    Considered and decided by ANDERSON, Presiding Judge, WILLIS, Judge, and HUDSON, Judge.
   OPINION

ANDERSON, Judge.

Appellants Anissa Guzman, by her guardian Rebecca Z. Losoya, and her mother, Alicia Losoya, brought a personal injury action against respondent U S West, Inc. and its employee for injuries suffered by Anissa. The state provided medical assistance to Anissa; and as a condition for receipt of the assistance, An-issa’s mother assigned all of Anissa’s “rights to medical support and third party payments” as a condition of her eligibility for medical assistance. The state filed a medical-assistance lien and later settled all its claims against U S West. Appellants then settled their remaining claims against U S West, except their claim for future medical expenses. The district court granted U S West’s motion to dismiss on this remaining claim. It ruled that as a condition of receiving medical assistance, appellants had assigned their claims for all medical expenses, including future medical expenses, to the state, which then extinguished those claims by settling with U S West. Appellants argue that the district court erred as a matter of law because appellants did not assign to the state the right to recover future medical expenses. We affirm.

FACTS

On May 26, 2000, appellant Anissa Guzman, age seven, was struck and injured by a motor vehicle while trying to cross the street from behind an illegally parked U S West truck. She and her mother sued U S West and the driver of the truck. Anis-sa suffered permanent injuries, including brain damage. Experts predicted that the lifetime cost of her care would be in excess of $5.7 million, with the present value of her future medical needs estimated at more than $3.5 million.

Anissa did not have medical insurance at the time of the accident and her mother was unable to pay her medical expenses. Her mother applied for and obtained medical assistance from the state and, as a condition of eligibility, assigned to the state “any rights to medical support and third party payments.” Minn.Stat. § 256B.056, subd. 6 (2002). The state filed a medical-assistance lien on any cause of action arising out of the accident. As of March 28, 2002, the state had made medical payments on behalf of Anissa in the amount of $828,680.49.

On April 2, 2002, the state settled with U S West for the sum of $315,000. The letter from the state to U S West confirming this settlement stated:

This will confirm that Qwest Corporation, formerly known as U S West, has settled all claims/interests, past, present and future, of the State of Minnesota (including, but not limited to, the Department of Human Services) with regard to the above-referenced matter for the sum of $315,000. It is also agreed that upon receipt of the check the State of Minnesota, through its authorized representative, will sign an unqualified general release of U S West/Qwest for all claims, past, present and future, known and unknown.

Appellants were neither contacted nor asked to consent to this settlement. Appellants then reached a separate settlement with U S West for their remaining claims arising from the accident, except the claim for future medical expenses.

U S West moved to dismiss appellants’ remaining claim for future medical expenses. The district court ruled that Anis-sa’s mother had assigned the right to claims for all medical expenses, including future medical expenses, recoverable from third parties, to the state. The district court held that the state extinguished its claim for all future medical expenses against U S West when it settled with U S West. Consequently, it granted respondent’s motion to dismiss appellants’ claim for future medical expenses. This appeal followed.

ISSUE

Did appellants assign their claim for future medical expenses to the state as a condition of eligibility for medical assistance?

ANALYSIS

On an appeal from a judgment dismissing a claim, this court will review whether there was a legally sufficient claim for relief. Elzie v. Comm’r of Pub. Safety, 298 N.W.2d 29, 32 (Minn.1980). Application of law to undisputed facts is considered de novo by the appellate courts. A.J. Chromy Constr. Co. v. Commercial Mech. Servs., Inc., 260 N.W.2d 579, 582 (Minn.1977). The appellate court also reviews issues of statutory construction de novo. Am. Family Ins. Group v. Schroedl, 616 N.W.2d 273, 277 (Minn.2000).

We engage in statutory interpretation “to ascertain and effectuate the intention of the legislature.” Minn.Stat. § 645.16 (2002). “If the statutory language is plain and unambiguous, the court must give it its plain meaning.” In re Welfare of J.M., 574 N.W.2d 717, 721 (Minn.1998) (citation omitted). If ambiguous, the intention may be ascertained by considering various factors. Minn.Stat. § 645.16.

Medicaid, which is jointly funded by the state and federal government, was meant “to ensure medical care to certain individuals who lack the resources to cover the costs of essential medical services.” Martin v. City of Rochester, 642 N.W.2d 1, 9 (Minn.2002) (citations omitted), cert, denied, — U.S. -, 123 S.Ct. 2668, 156 L.Ed.2d 655 (2003). “Each state administers its own program within federally mandated requirements.” Id. (citation omitted). As a condition of eligibility, under federal law, recipients must “assign to the State any rights * * * to support and to payment for medical care from any third party.” 42 U.S.C. § 1396k(a)(l)(A) (2000). Accordingly, the state requires the recipient to assign to it “all rights the person may have to medical support or payments for medical expenses from any other person or entity * * MinmStat. § 256B.056, subd. 6 (2002).

It is undisputed that appellants assigned their rights to recover on claims they had against third parties for medical expenses paid by the state. At issue here is whether this assignment included appellants’ rights to recover future medical expenses which, because Anissa has not yet incurred them, the state had not yet paid, or whether the assignment was limited to medical payments accrued by the state at the time of settlement. The state, which had paid $328,680.49 in medical expenses for Anissa at the time of the settlement, settled with U S West for $315,000. Anissa’s future medical expenses are estimated to exceed $5 million.

The Minnesota Supreme Court recently extensively reviewed Minnesota’s Medicaid-lien provisions, addressing “whether Minnesota’s medical assistance lien, assignments, and subrogation statutes are preempted by the federal anti-lien statute.” Martin, 642 N.W.2d at 8-9. The supreme court held, in relevant part, that the state may obtain

an assignment of the recipient’s right to recover for medical expenses against all third parties that are potentially hable for the injuries that necessitated medical assistance.

Id. at 19. This assignment is limited to “payments for medical or health care expenses.” Id. at 12-13. The recipient retains the right to claims for other losses, such as pain and suffering, and loss of earning capacity. Id. at 15.

In analyzing the issues, the supreme court likened the recipient’s potential right to recover from the liable parties in a tort action to a “bundle of sticks.” Id. at 14-15. To become eligible to receive medical assistance, the recipient must assign to the state “one stick from that bundle — the specific claim to recover medical expenses from those responsible for the injuries.” Id. at 15. The state then becomes sole owner of that claim, while the recipient retains the right to proceed on the other claims in the tort action. Martin, 642 N.W.2d at 15. In the process of interpreting the assignment statute to be consistent with federal law, the court held

that when a medical assistance recipient has a cause or causes of action against potentially liable third parties for his injuries, the medical assistance assignment statute grants to the state an assignment right to all claims for medical care, but it does not grant an assignment right to any other claims or the recovery therefrom.

Id. at 19 (emphasis added). Martin does not distinguish between the claim for past and future medical expenses, and specifically refers to “all claims for medical care.” Id.

This court also touched on these issues in Brown v. State, 617 N.W.2d 421 (Minn. App.2000), review denied (Minn. Nov. 21, 2000), cert. denied, 532 U.S. 995, 121 S.Ct. 1655, 149 L.Ed.2d 638 (2001). There, we addressed whether medical assistance recipients could recoup funds from the state’s tobacco settlements, based on the formulae used to allocate funds recovered from third parties. Id. at 423. This court rejected the claim, stating that “subsequent to the assignment, the legal right to recover the medical expenses paid by the state from third parties belonged solely to the state.” Id. at 426. Again, as in Martin, while the issue of past-versus-future medical benefits was not explicitly addressed, the Brown court gave no indication that past and future benefits can or should be considered separately.

Appellants, however, cite language in the state and federal statutes that refers to the state’s right to recovery from third parties of payments it has made on behalf of the recipient. They contend that the state is not assigned the right to future expenses it had not yet paid. See 42 U.S.C. § 1396a(a)(25)(H) (2000) (referring to the state acquiring rights to payment by other party for health-care items or expenses to “the extent that payment has been made”). Similarly, the statutory language of the assignment statute, Minn. Stat. § 256B.056, subd. 6 (2002), provides as follows:

To be eligible for medical assistance a person must have applied or must agree to apply all proceeds received or receivable by the person or the person’s spouse from any third person liable for the costs of medical care for the person, the spouse, and children. The state agency shall require from any applicant or recipient of medical assistance the assignment of any rights to medical support and third-party payments. * * * By signing an application for medical assistance, a person assigns to the Department of Human Services all rights the person may have to medical support or payments for medical expenses from any other person or entity * * *. Any rights or amounts so assigned shall be applied against the costs of medical care paid for under this chapter. Any assignment takes effect upon the determination that the applicant is eligible for medical assistance * * ⅝.

Id. (emphasis added). The district court concluded that the statutory language referring to “all proceeds received or receivable by the person” established that future medical benefits were assigned. We agree with the court’s reasoning that because, at the time of the application for medical assistance, little or no medical care had been provided, the assignment could only apply to future medical expenses.

Appellants further note that federal law also requires that any amounts collected that exceed the amounts actually paid must be returned to the individual. 42 U.S.C. § 1396k(b) (2000). We agree that if the amount collected from third parties by the state had exceeded the amount expended, any such remainder would have to be returned to the appellants under this statute. But that rule does not contradict the result reached here.

Appellants argue persuasively that requiring an assignment of future benefits is inequitable and unfair. Among other problems, at least based on the record before this court, such an assignment may not resolve how this tragically injured child will receive medical care should she need to move from Minnesota. And there is nothing immutable about either the existence of Medicaid or other governmental health care programs or a recipient’s eligibility for those benefits. But we are not empowered to overrule or disregard a legislative enactment simply because it is unfair or inequitable. The remedy, if any is to be had, lies in the hands of elected legislative representatives, not this court.

Appellants also raise several constitutional claims, which do not merit discussion.

DECISION

The district court correctly interpreted the law to hold that appellants, as a condition of eligibility for medical assistance, assigned to the state all rights to recovery for medical expenses, including future medical expenses. The state’s settlement with U S West extinguished appellants’ rights to pursue a claim for future medical expenses. The district court properly dismissed that claim.

Affirmed.

      . US West is now Qwest Corporation.


source: Caselaw Access Project

author: HARTEN, Judge.

license: Public Domain

text:
    Mary DOE, et al., Appellants, v. F.P., Respondent, Diocese of Winona, Respondent.
    No. CX-03-333.
    Court of Appeals of Minnesota.
    Aug. 19, 2003.

      J. Poage Anderson, Diane M. Odeen, Nichols, Kaster & Anderson, PLLP, Minneapolis, for appellants.
    Robert L. McCollum, Teri E. Bentson, McCollum, Crowley, Vehanen, Moschet & Miller, Ltd., Bloomington, for respondent F.P.
    George F. Restovich, Bruce K. Piotrow-ski, George Restovich & Associates, Rochester, for respondent Diocese of Winona.
    Mike Hatch, Attorney General, John S. Garry, Assistant Attorney General, St. Paul, for amicus curiae State of MN.
    Considered and decided by HARTEN, Presiding Judge, WILLIS, Judge, and WRIGHT, Judge.
   OPINION

HARTEN, Judge.

Based on the sexual relationship between appellant Mary Doe and respondent F.P., a Catholic priest of respondent Diocese of Winona (the diocese), Mary Doe and her husband, appellant John Doe, brought claims against respondents for sexual abuse/sexual exploitation, intentional infliction of emotional distress, and loss of consortium. They also asserted claims against the diocese for negligent hiring and retention, negligent supervision, and strict liability, and a claim against F.P. for breach of fiduciary duty.

Appellants moved for leave to add a claim for punitive damages. Respondents moved for summary judgment. The district court denied appellants’ motion and granted summary judgment to respondents on all claims. Appellants challenge the denial of their motion; the summary judgment granted on the claim under Minn.Stat. § 148A.03 (2002); the dismissal of claims under Minn.Stat. § 609.344, subd. l(i) (2002), and Minn.Stat. § 609.345, subd. 1(0 (2002), based on the conclusion that those statutes facially violate the Establishment Clause of the United States Constitution, and the dismissal of the derivative claims.

FACTS

Appellants John and Mary Doe and their three young children were members of the Catholic parish in Currie, Minnesota. Mary Doe worked part-time as a musician for the parish.

In summer 1987, F.P., a priest, was assigned to the Currie parish. He got to know Mary Doe in her capacity as a musician and became a friend of the Doe family. F.P. and Mary Doe met weekly to plan the music for services. They developed what both regarded as a close friendship; in F.P.’s words, they “fell in love” and mutually disclosed intimate details of their lives: in F.P.’s case, these included his sexual relationships with other women; in Mary Doe’s case, they included her disappointing involvement with the charismatic movement, her fears of alcoholism, and her dissatisfaction with her marriage. F.P. advised Mary Doe to see a counselor for her family problems and a substance abuse expert for her alcoholism; he also recommended a spiritual advisor for her. Mary Doe saw all three of these professionals on an ongoing basis. The sexual component of the relationship between Mary Doe and F.P. began with hugs and had progressed to sexual touching by 1992.

In July 1993, F.P. was transferred from Currie to Mankato, about 90 miles away. F.P. visited the Doe family in Currie about once a month; Mary Doe, sometimes with a member or members of her family, also visited him in Mankato. Many of these visits involved sexual contact between F.P. and Mary Doe. The relationship ended in 1998, after Mary Doe discovered that F.P. was sexually involved with another woman. She and her husband eventually brought this action against F.P. and the diocese. The district court dismissed the action, and this appeal followed.

ISSUES

1. Did F.P. provide psychotherapy to Mary Doe within the meaning of Minn. Stat. § 148A.01, subd. 6 (2002)?

2. Do Minn.Stat. § 609.344, subd. 1(0 (2002), and Minn.Stat. § 609.345, subd. 1(0 (2002), violate the Establishment Clause of the United States Constitution?

ANALYSIS

1. Summary Judgment on Section 148A.02 Claim

On appeal from summary judgment, this court asks whether there are any genuine issues of material fact and whether the district court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990). The district court granted respondents summary judgment on appellants’ claim under Minn.Stat. § 148A.02 (2002), alleging that F.P. was practicing psychotherapy in his relationship with Mary Doe.

“Psychotherapist” means a physician, psychologist, nurse, chemical dependency counselor, social worker, member of the clergy, marriage and family therapist, mental health service provider, or other person, whether or not licensed by the state, who performs or purports to perform psychotherapy.

Minn.Stat. § 148A.01, subd. 5 (2002). “‘Psychotherapy’ means the professional treatment, assessment, or counseling of a mental or emotional illness, symptom, or condition.” Id., subd. 6 (2002). A cause of action may be brought against a psychotherapist for sexual contact that occurred

(1) during the period the patient was receiving psychotherapy from the psychotherapist; or
(2) after the period the patient received psychotherapy from the psychotherapist if (a) the former patient was emotionally dependent on the psychotherapist; or (b) the sexual contact occurred by means of therapeutic deception.

Minn.Stat. § 148A.02.

It is not a defense to the action that sexual contact with a patient occurred outside a therapy or treatment session or that it occurred off the premises regularly used by the psychotherapist for therapy or treatment sessions.

Id. The Minnesota Supreme Court recently addressed a claim brought against a member of the clergy as a result of a sexual relationship under a similar law, Chapter 148B, governing unlicensed mental health practitioners. “ ‘Unlicensed mental health practitioner’ * * * includes ⅜ ⅜ * (3) clergy who are providing mental health services that are equivalent to those defined in subdivision 4.” Odenthal v. Minn. Conference of Seventh-Day Adventists, 649 N.W.2d 426, 437 (Minn.2002) (quoting Minn.Stat. § 148B.60, subd. 3 (1998)).

Subd. 4. “Mental health services” means psychotherapy and the professional assessment, treatment, or counseling of another person for a cognitive, behavioral, emotional, social, or mental condition, symptom, or dysfunction, including intrapersonal or interpersonal dysfunctions.

Id. (quoting Minn.Stat. § 148B.60, subd. 4 (1998)). The supreme court based its determination that a clergy member “provided services equivalent to psychotherapy” within the meaning of Minn.Stat. § 148B.60 on several factors: (1) the cleric referred to his sessions with a couple as “marital counseling”; (2) the meetings with the couple varied from weekly to monthly over two years; (3) the cleric brought third parties to the counseling sessions to assist the couple with their marriage problems; (4) he discussed his psychological coursework and used psychological terminology; (5) he conducted psychological and personality examinations of the couple and assessed their personalities; (6) he attempted to modify one party’s behavior; and (7) he challenged the opinions of professional counselors, saying that they did not understand the situation as well as he did and that his advice and approach were superior to theirs. Id. at 438-39.

None of these factors is present here. F.P. referred to himself and Mary Doe as “friends”; she spoke of him as her friend and of their relationship as between equals. During the period that F.P. and Mary Doe had regular weekly meetings, the meetings were for the purposes of liturgy planning or choir practice. F.P. repeatedly advised Mary Doe to seek counseling from professionals — not from himself — regarding her depression and her alcohol use, and she often discussed with him what her professional counselors had told her. F.P. had no training in counseling or psychology. When asked if he counseled parishioners going through a death in the family, he said he would “visit with them and be with them in their pain”; when asked if he counseled parishioners about substance abuse, he said, “If they came to me, I would talk with them and refer them.” F.P. also testified about his own counseling, using the term to mean scheduled, compensated appointments with a professional psychologist or psychiatrist. He conducted no psychological or personality testing of Mary Doe or of anyone else. He did not provide “professional treatment, assessment, or counseling of a mental or emotional illness, symptom, or condition” within the meaning of Minn. Stat. § 148A.01, subd. 6, and Minn.Stat. § 148A.02. Their communications did not come within the statutory meaning of psychotherapy.

Mary Doe claimed that F.P. counseled her, but she defined counseling as, “[Y]ou just simply go talk to someone about your personal problems.” In her deposition, she referred to F.P. as a friend of her and her family and to their relationship as mutual and between equals. She testified that, when their friendship began, F.P. shared with her information about his sexual activities with other women in parishes to which he had previously been assigned. She also testified that when, near the end of their relationship, she discovered that F.P. was sexually involved with another woman, she was hurt; F.P. testified that she was jealous.

We conclude that the district court did not err in granting respondents summary judgment on appellants’ chapter 148A claim that F.P. was practicing psychotherapy in his relationship with appellant and, accordingly, affirm the district court as to that issue.

2. Constitutionality of Sections 609.344, Subdivision l(i), and 609.345, Subdivision 1(0

Minnesota statutes are presumed constitutional, and this court’s power to declare a statute unconstitutional should be exercised with extreme caution. In re Haggerty, 448 N.W.2d 363, 364 (Minn.1989). Determining a statute’s constitutionality is a question of law. Hamilton v. Comm’r of Pub. Safety, 600 N.W.2d 720, 722 (Minn.1999).

Sexual penetration is third degree criminal sexual conduct and sexual contact is fourth degree criminal sexual conduct when committed by a member of the clergy either

(i) * * * during the course of a meeting in which the complainant sought or received religious or spiritual advice, aid, or comfort from the actor in private; or
(ii) * * * during a period of time in which the complainant was meeting on an ongoing basis with the actor to seek or receive religious or spiritual advice, aid, or comfort in private.

Minn.Stat. § 609.344, subd. 1(7) (2002); Minn.Stat. § 609.345, subd. 1(0 (2002). The district court found that these statutes facially violate the Establishment Clause of the United States Constitution. The statutes are before us in a civil context. See Brett v. Watts, 601 N.W.2d 199, 202 (Minn.App.1999) (Minnesota law recognizes cause of action for personal injury based on sexual abuse), review denied (Minn. 17 Nov. 1999). Minn.Stat. § 541.073, subd. 1 (2002), defines the civil action for sexual abuse by reference to sections 609.342 to 609.345 of the criminal law.

The Establishment Clause provides that “Congress shall make no law respecting an establishment of religion * * See Odenthal, 649 N.W.2d at 434-35 (quoting U.S. Const. amend I). Whether a government action violates the Establishment Clause is controlled by the three factors set out in Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971). The state action “must have a secular purpose, must neither inhibit nor advance religion in its primary effect, and must not foster excessive governmental entanglement with religion.” Odenthal, 649 N.W.2d at 435 (citing Lemon, 403 U.S. at 612-13, 91 S.Ct. at 2111). The district court concluded that sections 609.344, subdivision 1(1), and 609.345, subdivision lffi, foster excessive entanglement because, to enforce these provisions, courts must determine whether the “advice, aid, or comfort” provided by a member of the clergy in private was “religious or spiritual.”

No Minnesota case is directly on point, but Odenthal recently addressed the entanglement prong of the Lemon test. The supreme court rejected the argument that,

because we will have to determine what aspects of the counseling relationship are religious and what aspects are secular, the court will become entangled in religion. However, [defendant] fails to identify how determining whether a person is providing “assessment, treatment, or counseling” [Minn.Stat. § 148B.60, subd. 4, definition of mental health services] for the conditions described in the statute requires any inquiry into the religious aspect of the relationship. Therefore, we see no need to parse out secular and religious counseling to apply this definition, and its application does not alter or impinge upon the religious character of the relationship. Therefore, applying the statutory definition of mental health services does not excessively entangle the courts in religion.

Id. at 438 (quotation and citation omitted). Analogously, for us to determine whether the advice, aid, or comfort sought or received by a victim from a member of the clergy was religious or spiritual within the meaning of Minn.Stat. § 609.344, subd. lffi, and Minn.Stat. § 609.345, subd. lffi, would appear not to excessively entangle a court in religion.

Whether a communication is of a religious or spiritual nature is a question of fact frequently addressed by the courts in the context of the application of the clergy privilege. See, e.g., State v. Rhodes, 627 N.W.2d 74, 85 (Minn.2001) (basing determination that communication was not protected by clergy privilege in part on finding that content of communication was not religious); State v. Black, 291 N.W.2d 208, 216 (Minn.1980) (basing determination that clergy privilege did not apply on finding that content of communication was not religious); State v. Orfi, 511 N.W.2d 464, 470 (Minn.App.1994) (basing determination that clergy privilege did apply on application of three factual criteria to find that conversations between defendant and two ministers were for the purpose of seeking religious or spiritual advice, aid, or comfort), review denied (Minn. 15 March 1994).

Respondents argue that the very structure of sections 609.344, subd. lffi, and 609.345, subd. lffi, demonstrates that clergy are unconstitutionally singled out as targets for criminal restriction. We disagree. Respondents’ argument ignores the subsections of these statutes that pertain to other distinct groups, e.g., psychotherapists (Minn.Stat. §§ 609.344, subd. 1(h)(3) (2002), 609.345, subd. 1(h)-(j) (2002)); government and private correctional employees (Minn.Stat. §§ 609.344, subd. 1(m) (2002), 609.345, subd. 1(m) (2002)); and special transportation agents (Minn.Stat. §§ 609.344, subd. 1(n) (2002), 609.345, subd. 1(n) (2002)). Like sexual abuse committed by members of these other groups, sexual abuse committed by clerics during the course of their ministry is treated according to neutral principles of law. See Odenthal, 649 N.W.2d at 435 (citing Jones v. Wolf, 443 U.S. 595, 602-04, 99 S.Ct. 3020, 3025-26, 61 L.Ed.2d 775 (1979), for the holding that there is no entanglement problem when a dispute involving religious entities is resolved according to neutral principles of law and Piletich v. Deretich, 328 N.W.2d 696, 701 (Minn.1982), for the adoption of the neutral principles test in Minnesota).

We conclude that having courts determine whether the “advice, aid, or comfort” provided by a member of the clergy in private was “religious or spiritual” does not violate the Establishment Clause by fostering excessive governmental entanglement with religion. We therefore reverse the district court’s determination that Minn.Stat. § 609.344, subd. 1(1), and Minn. Stat. § 609.345, subd. 1(0, are facially unconstitutional as violations of the Establishment Clause.

3. Remanding Claims

Appellants argue that, if this court determines that sections 609.344, subdivision 1(0, and 609.345, subdivision 1(0, are not unconstitutional, appellants are entitled to summary judgment on their claims under these statutes because “F.P. has admitted all the elements of criminal sexual abuse.” But the district court, having determined that the statutes were unconstitutional, did not have opportunity to consider whether the evidence, viewed in the light most favorable to F.P., showed that there was no genuine issue of material fact that F.P.’s conduct after 1 August 1993 (the statutes’ effective date) met every element of the statute. This court cannot review what the district court did not address. See Thiele v. Stick, 425 N.W.2d 580, 582 (Minn.1988). Therefore, we remand appellants’ claims under sections 609.344, subdivision 1(1), and 609.345, subdivision 1(1).

We also remand the claims for negligent hiring and retention, negligent supervision, loss of consortium, and strict liability. After granting respondents summary judgment on the claims under Minn. Stat. § 148A.02-03 and dismissing the claims under sections 609.344, subdivision 1(1), and 609.345, subdivision 1(Z), the district court found that Mary Doe had not alleged the physical abuse or threat of physical abuse required for claims of negligent hiring and retention and negligent supervision, that Mary Doe had made no viable claim to support John Doe’s derivative claim for loss of consortium, and that there was no statutory claim for sexual abuse to support a claim for strict liability. We remand these claims for district court consideration in light of however the district court decides the parties’ summary judgment motions on the claims under sections 609.344, subdivision 1(1), 609.345, subdivision 1(1), and appellants’ motion for leave to amend the complaint. As to the latter, the district court has broad discretion to grant or deny leave to amend a complaint, and its ruling will not be reversed absent a clear abuse of discretion. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn.1993). Whether the district court has abused its discretion in ruling on a motion to amend may turn on whether it was correct in an underlying legal ruling. See id. at 762. Here, the district court was incorrect in its underlying legal ruling. We therefore reverse and remand the denial of appellants’ motion for leave to amend in light of the district court’s determination on their claims under the underlying statutes.

DECISION

Because F.P. did not provide psychotherapy to Mary Doe within the meaning chapter 148A, the district court did not err in granting respondents summary judgment on claims under that chapter. Because we hold that sections 609.344, subdivision 1(Z), and 609.345, subdivision lffi, do not violate the Establishment Clause, we reverse the district court’s conclusion that they are unconstitutional and remand the parties’ other claims for adjudication.

Affirmed in part, reversed in part, and remanded.

      . Appellants do not challenge the dismissal of their non-statutory claims for breach of fiduciary duty and intentional infliction of emotional distress.

      . In their brief, appellants also address the application of the Free Exercise Clause of the United States Constitution and of the Freedom of Conscience provision of the Minnesota Constitution, which incorporates the federal Free Exercise Clause, although they concede that respondents never argued that the statute violated the Free Exercise Clause. Nor did the district court address either the application of the federal Free Exercise Clause or the Minnesota Constitution. Therefore, since respondents did not raise these issues and the district court did not address them, they are not before this court. See Thiele v. Stick, 425 N.W.2d 580, 582 (Minn.1988).

      . But see Bollard v. Cal. Province of Soc’y of Jesus, 196 F.3d 940, 948 n. 2 (9th Cir.1999) ("We realize that dissatisfaction with the Lemon test has led several Justices to advocate alternative analytical frameworks. A new Establishment Clause test may well be on the horizon. Still, because the Court has not yet reached consensus on Lemon’s successor, we continue to apply its test.” (citations omitted)); Amico v. New Castle County, 101 F.R.D. 472, 494 (D.Del.1984) ("While the Supreme Court has recently warned that this three-part test should not be mechanically applied in this sensitive area, the test remains a useful tool in establishment clause analysis.”). See Lynch v. Donnelly, 465 U.S. 668, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984).

      . Respondents' argument also ignores the statutes regulating other clerical activities. See, e.g., Minn.Stat. § 517.05 (2002) (requiring clergy to file credentials before being authorized to solemnize a marriage); Minn.Stat. § 626.556, subd. 3(a)(2) (2002) (including clergy among mandated reporters of child abuse or neglect).

      . See also Sanders v. Casa View Baptist Church, 134 F.3d 331, 335-36 (5th Cir.1998) (“The First Amendment does not categorically insulate religious relationships from judicial scrutiny, for to do so would necessarily extend constitutional protection to the secular components of these relationships.”).


author: HUDSON, Judge.

text:
    NORTHERN STATES POWER COMPANY, d/b/a Xcel Energy, Appellant, v. MINNESOTA METROPOLITAN COUNCIL, Respondent, Minnesota Department of Transportation, et al., Respondents.
    No. C4-03-67.
    Court of Appeals of Minnesota.
    Aug. 19, 2003.

      Timothy R. Thornton, Thomas J. Basting, Jr., Briggs & Morgan, P.A., Minneapolis, MN, for appellant.
    Lewis A. Remele, Jr., Andrew L. Marshall, Bassford, Lockhart, Truesdell & Briggs, P.A., Minneapolis, MN, for respondent Minnesota Metropolitan Council.
    Mike Hatch, Attorney General, David M. Jann, Ann K Bloodhart, Assistant Attorneys General, St. Paul, MN, for respondent Minnesota Department of Transportation.
    Considered and decided by SCHUMACHER, Presiding Judge, HUDSON, Judge, and FORSBERG, Judge.

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

   OPINION

HUDSON, Judge.

Appellant Northern States Power, now known as Xcel Energy, challenges the district court’s dismissal of its writ of mandamus. Xcel Energy argues the district court erred by holding that (1) there is no factual dispute in this matter; (2) Xcel Energy’s claim is premature and speculative; and (3) Xcel Energy has an adequate legal remedy. Appellant also argues that the district court improperly considered evidence outside the four corners of Xcel Energy’s verified petition. We reverse and remand.

FACTS

The Hiawatha Light Rail Transit project (LRT) is an 11.6-mile mass-transit system that will connect downtown Minneapolis to the Minneapolis/St. Paul International Airport and the Mall of America. Respondent Minnesota Department of Transportation (MNDoT) is overseeing the design and construction of the light-rail line, and co-respondent Minnesota Metropolitan Council (Met Council) will own and operate the transit system once it is operational.

LRT’s current route through downtown Minneapolis takes the train down Fifth Street and in close proximity to the underground electrical substation owned by Xcel Energy. The substation is comprised of four massive power transformers, each of which weighs 120 tons and is four stories tall. The transformers are housed in a subsurface vault under the plaza in front of Xcel Energy’s office complex at Fifth Street and Nicollet Avenue. Xcel Energy operates this facility pursuant to a franchise agreement with the City of Minneapolis. The franchise agreement states that in exchange for an annual $18 million franchise fee, Xcel Energy has the right to use the city’s “streets, alleys and public grounds” in order to distribute power in Minneapolis.

The substation is the source of 80% of downtown Minneapolis’s energy. The transformers are designed in such a way that it would take a simultaneous failure of three transformers before there was a disruption in the downtown area’s power supply. The roughly 1,000 similar transformers in service elsewhere enjoy a one percent failure rate. Although the transformers in Minneapolis have never needed to be replaced, statistical failure rates indicate that one transformer will need to be replaced every 25 years. Three of Xcel Energy’s transformers were installed in the 1960’s, and the fourth was put in place in the mid-1980’s.

Replacing one of the transformers requires Xcel Energy to obtain a city permit to close Fifth Street so that it can be torn up in order to access the transformers. Because failed transformers cannot be repaired in place, two 300-ton capacity cranes must then be positioned on Fifth Street to lift the transformer out. With the construction of LRT, Fifth Street would still need to be closed off and torn up, but Xcel Energy would now need to position the two 300-ton capacity cranes on the LRT tracks in order to access the transformers. In addition, once the cranes are in place, the crane booms must be extended over the transformer vault to extricate the transformers; thus LRT’s poles and overhead wires must be removed. The entire process would take approximately two months. Xcel Energy maintains that LRT’s installation on Fifth Street will prevent the utility from setting up the equipment needed to access and replace their transformers. Without the Met Council’s or MNDoT’s permission to shut down train service and remove the train equipment from Fifth Street, Xcel Energy claims it could not access the transftmmers to perform these time-consuming and critical projects. Therefore, Xcel Energy argues, power supply dependability is seriously compromised, and its substation is rendered essentially worthless.

In 1999, the parties began trying to negotiate an agreement to ensure the utility’s reasonable access to its substation. These initial discussions focused on moving the substation itself; however, the parties were unable to agree on their respective financial responsibilities for such an endeavor. The Met Council ultimately requested federal funding for the LRT initiative, but it did not seek funds to help offset the cost of moving the substation. Xcel Energy then refused to move its equipment without a guarantee of reimbursement. Xcel Energy brought suit against MNDoT, the Met Council, and the Federal Transportation Agency (FTA) in federal district court, seeking compensation for the cost of relocating its substation. However, in 2002, all three defendants were granted summary judgment.

Xcel Energy then filed a verified petition for alternative writ of mandamus in Hennepin County District Court seeking to compel MNDoT and Met Council to initiate inverse-condemnation procedures, arguing that the ability to access its substation is a property right, and that respondents’ refusal to guarantee access renders the substation worthless. In lieu of an answer, the Met Council and MNDoT moved to dismiss for failure to state a claim.

In granting respondents’ motion to dismiss, the district court concluded that (1) Xcel Energy did not have a right to unfettered access to its property; (2) the LRT project did not change the ultimate fact that in order to access its equipment, Xcel Energy would still need to acquire a permit from the city, and Xcel Energy had produced no facts to suggest the construction of the light-rail line would make the acquisition of this permit any more difficult; (3) injunctive relief provided Xcel Energy with an adequate legal remedy; and (4) Xcel Energy’s petition was premature and speculative because the overhead wires are removable and the track beds have been designed to withstand the increased loads of the cranes — thus Xcel Energy has reasonable access. This appeal follows.

ISSUES
I. Did the district court err when it declined to apply the legal standard governing summary judgment to respondent’s rule 12 motion when it accepted and considered extrinsic evidence submitted by the Met Council?
II. Did the district court err by ruling that the construction of the light rail transit system does not unreasonably restrict appellant’s access to its underground substation?
III. Did the district court err by ruling that appellant had an adequate remedy at law and its petition was premature and speculative?

ANALYSIS

I

Following Xcel Energy’s filing of the petition for mandamus, MNDoT and Met Council moved to dismiss for failure to state a claim pursuant to Minn. R. Civ. P. 12.02(e). The district court, however, accepted extrinsic evidence submitted by Met Council, including an affidavit from the LRT project director, Edward Hunter, which stated that the contractors had been directed to provide removable supports for the overhead wires in order to accommodate substation access. Thus, the first issue we address is whether the district court erred by considering evidence outside the four corners of Xcel Energy’s petition for mandamus. Xcel Energy argues that the district court committed reversible error by considering extrinsic evidence submitted by respondents. In particular, Xcel Energy claims the district court impermissibly relied on the Hunter affidavit to reach its conclusion that LRT’s overhead wires and supporting structures are removable, and that the track beds can support the cranes and other equipment necessary for repairing the transformers. At a minimum, Xcel Energy argues that, upon accepting the Hunter affidavit, the district court should have treated the rule 12 motion as a summary judgment motion.

On a motion to dismiss, the only question before the court is whether the petition states a legally sufficient claim for relief. Elzie v. Comm’r of Pub. Safety, 298 N.W.2d 29, 32 (Minn.1980). When deciding whether to grant a motion to dismiss pursuant to Minn. R. Civ. P. 12.02(e), the district court is only to consider the evidence alleged in the petition. In re Milk Indirect Purchaser Antitrust Litig., 588 N.W.2d 772, 775 (Minn.App.1999). A claim prevails against a motion to dismiss if it is possible on any evidence that is consistent with the plaintiffs theory to grant relief. Geldert v. Am. Nat’l Bank, 506 N.W.2d 22, 25 (Minn.App.1993). And the allegations contained in the pleading must be considered as true and viewed in the light most, favorable to the pleader. N. Star Legal Found. v. Honeywell Project, 355 N.W.2d 186, 188 (Minn.App.1984), review denied (Minn. Jan 2, 1985). Significant to our analysis here, rule 12.02 requires the court' to regard a motion to dismiss as a summary judgment request when matters outside the pleadings are presented to and not excluded by the court. Minn. R. Civ. P. 12.02.

Here, as Xcel Energy accurately notes, the district court considered extrinsic evidence submitted by respondents. Among other evidence, the district court considered the affidavit of MNDoT’s expert, Edward Hunter. Hunter’s affidavit directly contradicts Xcel Energy’s claim that LRT’s poles and wires are not removable, and that therefore the location of LRT’s poles, wires and tracks significantly impedes Xcel Energy’s access to the downtown substation. We conclude that by considering evidence not found within Xcel Energy’s petition, the district court changed this proceeding from a motion to dismiss under rule 12, to a request for summary judgment pursuant to rule 56. Thus, the district court erred by not applying the summary judgment standard. Therefore, on appeal, we will review the district court’s determination under the summary judgment standard. Peoples State Bank Truman v. Triplett, 633 N.W.2d 533, 537 (Minn.App.2001), review denied (Minn. Oct 16, 2001).

II

On an appeal from summary judgment, we ask two questions: (1) whether there are any genuine issues of material fact, and (2) whether the district court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990).

A motion for summary judgment shall be granted when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that either party is entitled to a judgment as a matter of law. On appeal, the reviewing court must view the evidence in the light most favorable to the party against whom judgment was granted.

Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn.1993) (citation omitted). A genuine issue of material fact exists when the non-moving party presents evidence that creates a doubt as to a factual issue that is “probative with respect to an essential element of the nonmoving party’s case to permit reasonable persons to draw different conclusions.” DLH, Inc. v. Russ, 566 N.W.2d 60, 71 (Minn.1997).

Mandamus is an extraordinary remedy that should only be awarded

upon a showing that a party has suffered harm that is direct, substantial and peculiar * * * in that it differs markedly from the damages suffered by the public at large.

Vem Reynolds Constr., Inc. v. City of Champlin, 539 N.W.2d 614, 617 (Minn.App.1995) (quotation omitted), review denied (Minn. Dec. 20, 1995). Mandamus is available only to compel a duty clearly required by law. Zaluckyj v. Rice Creek Watershed Dist., 639 N.W.2d 70, 74 (Minn.App.2002), review denied (Minn. Apr. 16, 2002). It is, however, the proper vehicle to assert for a claim of inverse condemnation. Vern Reynolds, 539 N.W.2d at 616. To obtain mandamus relief the petitioner must show

(1) the failure of an official duty clearly imposed by law; (2) a public wrong specifically injurious to petitioner; and (3) no other adequate specific legal remedy.

Walther v. Lundberg, 654 N.W.2d 694, 697 (Minn.App.2002).

At the heart of this controversy is Xcel Energy’s contention that LRT’s installation on Fifth Street will deny Xcel Energy reasonable access to its substation, rendering it worthless. Therefore, Xcel Energy claims, the construction of LRT represents a taking entitling the utility to just compensation. As the district court properly found, Xcel Energy has a right to access its underground substation in a reasonable, convenient manner and government actions that unreasonably interfere with this right constitute a taking. The difficult question presented on appeal here, however, is what constitutes “reasonable access” to this very unique property? Or, put another way: does the installation of LRT’s poles, wires, and track beds so restrict the right of access to Xcel Energy’s substation as to require compensation under the Minnesota Constitution?

A. Eminent Domain / Taking

The Minnesota Constitution requires the government to pay a property owner just compensation when the government performs an act that, although in the public good, takes, damages or destroys private property. Minn. Const, art. I, § 13. A claim for inverse condemnation is appropriate when a government entity appropriates the land without formally exercising its power of eminent domain. Vem Reynolds, 539 N.W.2d at 616.

But not every annoyance and inconvenience with the use and enjoyment of one’s property that is caused by a government action requires compensation. Alevizos v. Metro. Airports Comm’n of Minneapolis & St. Paul, 298 Minn. 471, 486-87, 216 N.W.2d 651, 662 (1974). Any statement of what constitutes property is “nebulous at best,” and not every economic or social advantage is a property right that must be compensated when it is taken. Id. at 485, 216 N.W.2d at 661.

We also note, however, to be a taking that requires compensation under the Minnesota constitution, the taking need not be a taking in a strictly physical sense. Johnson v. City of Plymouth, 263 N.W.2d 603, 605 (Minn.1978). A constitutional taking can also arise out of interference with the ownership, possession or enjoyment of the property. Id. Property owners have a right of reasonable, convenient and suitable access to the public streets that abut their property. County of Anoka v. Esmailzadeh, 498 N.W.2d 58, 60 (Minn.App.1993), review denied (Minn. May 28, 1993); Hendrickson v. State, 267 Minn. 436, 446,127 N.W.2d 165,173 (1964).

B. Reasonable Access

What constitutes reasonable access depends on the nature of the property itself. Johnson, 263 N.W.2d at 605. Clearly, this case involves a very unique factual situation. Xcel Energy’s characterization of its substation as a “special use property” is quite apt,. making this case very different from the typical access dispute. For example, this controversy does not involve the mere, re-routing of a road or other traffic control device that makes access to a particular piece of property more difficult. See Id. (a property owner was not entitled to compensation despite the fact that a city’s decision to install curbs and gutters. along on the streets abutting the owner’s business restricted the owner’s access to his property because the city’s project did not substantially diminish access to the property); County of Anoka v. Blaine Bldg. Corp., 566 N.W.2d 331, 336 (Minn.1997) (holding loss of traffic access to property from one side of the highway caused by the construction of a highway median does not constitute a taking requiring compensation where the corporation still enjoyed reasonable access to its business from the other side of the road). By contrast, here we are presented with a complex government mass-transit project that may or may not prevent reasonable access to a massive power-distribution facility. There are few cases in Minnesota, or elsewhere, that present similar facts.

We do, however, find the supreme court’s decision in Alevizos helpful in analyzing this case. In Alevizos, property owners in south Minneapolis, whose property was situated under or near the Minneapolis-St. Paul Airport’s take-off and landing flight paths, filed a petition for a writ of mandamus claiming that the operation of the airport interfered with their use and enjoyment of their property “to such an extent as to amount to a taking.” Alevizos, 298 Minn, at 473-75, 216 N.W.2d at 655-56. The district court dismissed the petition concluding that a physical trespass had not taken place. Id. at 477, 216 N.W.2d at 657. The supreme court held that although not every inconvenience entitles a property owner to relief, relief should be granted where the property owner could show

a direct and substantial invasion of his property rights of such a magnitude he is deprived of the practical enjoyment of the property and that such invasion results in a definite and measurable diminution of the market value of the property. To justify an award of damages it must be proved that these invasions of property rights are not of an occasional nature, but are repeated and aggravated, and that there is a reasonable probability that they will be continued in the future. We recognize that with the test we have prescribed there may well be a dispute as to the property, if any, that is to be included in the inverse condemnation proceedings.

Id. at 487-88, 216 N.W.2d at 662. The Alevizos court remanded the matter to determine whether facts existed to show the airport had indeed adversely affected the plaintiffs’ land. Id. at 488, 216 N.W.2d at 663.

California has recently dealt with similar issues in addressing the effects of the construction of a light-rail line in the Los Angeles area. Although not controlling, these cases also aid our analysis here. In Perrin v. Los Angeles County Transp. Comm’n, 42 Cal.App.4th 1807, 50 Cal. Rptr.2d 488, 489 (1996), a property owner brought an inverse condemnation claim alleging that the installation of a light-rail line in front of her business unreasonably blocked access to her property and diminished the property’s value. The train eliminated parking on the side of the street where the property was located, and the installation of a guard rail and concrete divider made it more difficult for pedestrians to cross the street. Id. at 489-90. Although the train made access more inconvenient, because access had not been denied altogether, the California court held that the train did not substantially impair access to the property. Id. at 492-93, see also Bnvmer v. Los Angeles County Metro. Transp. Auth., 36 Cal.App.4th 1738, 43 Cal.Rptr.2d 314, 322 (1995) (construction of light rail train that eliminates vehicles’ ability to pass and park directly in front of the property was not a substantial impairment because facts did not demonstrate customers’ access would actually be diminished). Finally, in Lane v. San Diego Elec. Ry. Co., 208 Cal. 29, 31-35, 280 P. 109 (Cal.1929), the California Supreme Court held that installation of a train turnaround loop placing the train’s tracks across a business’s driveway constituted a substantial impairment.

As the district court correctly found, Xcel Energy has a right to reasonable access to its Fifth Street substation. To establish a taking, the court in Alevizos required a direct and substantial invasion of property rights, resulting in a measurable diminution of market value of the property. Alevizos, 298 Minn, at 487, 216 N.W.2d at 662. Xcel Energy has arguably satisfied this test. Here, Xcel Energy alleged facts in its petition that could prove LRT construction and installation substantially impairs Xcel Energy’s access to its property. Specifically, Xcel Energy has presented evidence that could lead a fact finder to conclude that LRT’s poles, wires and tracks present a physical barrier to accessing the substation, resulting in a significant diminution of market value to this “special use” property.

Respondents claim, however, that LRT’s wires, tracks and poles do not impose an unreasonable impediment because LRT has been designed so the poles and wires on Fifth Street can be removed to allow access to the substation. Likewise, respondents claim that the track beds have been constructed to sustain the weight of the cranes necessary to extricate a damaged transformer. But Xcel Energy fiercely denies this claim.

Xcel Energy notes that the Hunter affidavit is the basis for respondents’ claim that the wires are removable and the track beds are properly reinforced. That affidavit, however, was improperly considered by the district court in the context of respondents’ rule 12 motion. But even on its merits, Xcel notes that the affidavit states that the LRT track bed could be designed to withstand the weight of the cranes; nothing in the record — according to Xcel Energy — suggests that the LRT track bed has been so constructed. Thus, Xcel Energy continues to maintain that LRT’s wires and track beds are not removable and indeed create a physical barricade preventing Xcel Energy’s access to its substation.

Respondents also claim that LRT’s presence on Fifth Street does not unreasonably block access to Xcel Energy’s property, because removing or repairing a transformer has always been an incredibly challenging undertaking that requires the appropriate permits from the City of Minneapolis. In other words, according to respondents, nothing has changed; Xcel Energy must still get a permit from the City of Minneapolis to tear up Fifth Street. While this is true, respondents’ position appears to assume that LRT’s poles and wires are removable and thus Xcel Energy has no significant additional impediment to accessing its substation as a result of LRT. Again, this assumption is hotly disputed by Xcel Energy.

In our view, the parties’ insistence on their respective positions illustrates the materiality of the factual dispute — that is: whether the construction and installation of LRT denies Xcel Energy’s reasonable access to its downtown substation. Because under rule 56, all facts must be viewed in a light most favorable to Xcel Energy, on this record, we conclude that Xcel Energy has produced sufficient facts in its petition to present a material factual dispute as to the question of whether Xcel Energy has been denied reasonable access to its property. This factual dispute can only be answered in trial, and thus the district court erred in dismissing Xcel Energy’s mandamus petition.

Ill

Xcel Energy also challenges the district court’s conclusion that Xcel Energy has an adequate legal remedy. The district court concluded that should respondents deny Xcel Energy access to its substation at some future date, Xcel Energy could seek injunctive relief. As previously stated, mandamus is an extraordinary remedy and is only to be granted where the party seeking mandamus has no other legal remedy. Walther, 654 N.W.2d at 697.

Xcel Energy claims that the critical nature of its downtown substation makes injunctive relief impracticable because any impediment in its ability to access the transformers in a timely fashion creates a risk to the downtown’s power supply. Xcel Energy asserts that, if forced to ask for MNDoT’s or the Met Council’s permission or seek injunctive relief, critical time in replacing a damaged transformer would be lost. Xcel Energy also argues that it faces a literal, physical barrier to its substation; not just a procedural/administrative one.

Xcel Energy’s argument has merit. It is true, Xcel Energy does not have an unfettered right to access the substation any time it wants, and it must seek a permit from the City of Minneapolis in order to close the city’s street to repair the transformers. But it is unreasonable to require Xcel Energy to first seek permission from respondents to access its property and be denied before granting Xcel Energy relief. A property owner is entitled to seek mandamus if it becomes obvious that the state’s proposed plans will cause a future, substantial loss of access to his or her property. See Hendrickson v. State by Mondale, 267 Minn. 436, 127 N.W.2d 165 (1964) (holding that mandamus may be appropriate if highway construction plans show that access to a property will be limited to such an extent that there was no longer reasonably convenient and suitable access to the property).

Similarly the district court erred in concluding Xcel Energy’s claim was premature and speculative. Writs of mandamus are to be issued only when the government actions have inflicted actual harm on the property and not on speculative possible future harms. Thomsen v. State by Head, 284 Minn. 468, 472, 170 N.W.2d 575, 578-79 (1969). Here, like other cases where the appellate courts have found actual-present harm done to a property owner’s interests, Xcel Energy has suffered real, actual harm by virtue of the construction and installation of LRT. LRT is more than a proposed plan. The tracks are in and the poles and wires will soon be installed. It appears — viewing the facts in a light most favorable to Xcel Energy — that the LRT wires are not removable and the tracks cannot withstand the weight of the cranes necessary to repair a damaged transformer. Thus, Xcel Energy has already suffered a real, substantial loss of access to its property. The Minnesota Supreme Court has held that mandamus was appropriate where the government designed and constructed an interstate in such a way that access to a grocery store was no longer accessible except via a “very circuitous route.” Johnson Bros. Grocery Inc. v. State Dept. of Highways, 304 Minn. 75, 77-78, 229 N.W.2d 504, 505 (1975). Likewise in County of Anoka v. Esmailzadeh, the court held that a taking occurred where a highway construction made it nearly impossible to access the plaintiffs business. Esmailzadeh, 498 N.W.2d at 61-62. Similarly here, respondents have designed LRT in such a way that it creates a physical barrier to Xcel Energy’s property. Just as we would not require a store owner to wait until customers were actually thwarted in their attempts to reach a store before seeking relief, it is unreasonable to expect Xcel Energy to wait until its substations have failed and the utility is unable to access them for extrication before we determine whether its right of access has in fact been unreasonably denied.

DECISION

Because the record demonstrates that there are material facts in dispute as to whether the installation of LRT along Fifth Street in downtown Minneapolis unreasonably denies Xcel Energy access to its property, and because the district court erred in finding that Xcel Energy’s claim was premature and that Xcel Energy had an adequate legal remedy, we reverse and remand for further proceedings.

Reversed and remanded.

      . The track bed on Fifth Street was constructed during the spring and summer of 2002. The rail and overhead catenary (power) wires are presently being installed.


author: VANDE WALLE, Chief Justice.

text:
    2003 ND 128
    Duffy R. WEISS and Shawtee Weiss, Plaintiffs and Appellants v. COLLECTION CENTER, INC., and Medcenter One—Q & R Clinic, Defendants and Appellees and John and Mary Doe, Defendants.
    No. 20020327.
    Supreme Court of North Dakota.
    Aug. 20, 2003.

      John J. Gosbee, Gosbee Law Firm, Man-dan, for plaintiffs and appellants.
    Michael L. Wagner, Wagner Law Firm, Bismarck, for defendant and appellee Collection Center, Inc.
    Timothy D. Lerviek, Schulz Lervick Geiermann & Bergeson Law Offices, Bismarck, for defendant and appellee Med-center One.
   VANDE WALLE, Chief Justice.

[¶ 1] Duffy and Shawtee Weiss appealed from a summary judgment which dismissed their claims against Collection Center, Inc. (“CCI”) and John and Mary Doe as unidentified representatives of CCI for violations of the Fair Debt Collection Practices Act (the “Act”) and which dismissed their claims against CCI, the Does, and Medcenter One — Q & R Clinic (“Medcen-ter”) for intentional and negligent infliction of emotional distress. We conclude the Weisses have raised genuine issues of material fact about their claim, but summary judgment was properly granted on their other claims. Therefore, we affirm in part, reverse in part, and remand for proceedings consistent with this opinion.

I

[¶ 2] Shawtee Weiss received medical treatment at Medcenter, and as a result, the Weisses had a $255 outstanding account balance. In October 2001, Medcen-ter assigned the Weisses’ unpaid account to CCI for collection. By affidavit, CCI president Bryan Dvirnak explained CCI’s collection procedures. When an account is “turned over” to CCI, the account enters a “pre-collect” stage. CCI sends one to three letters to the debtor requesting payment during this stage, and no other debt collection efforts are employed. If the debtor fails to pay during pre-collect, the account then proceeds to “full-collection.” At this stage, a letter is sent notifying the debtor his account is in full-collection, and a CCI representative usually calls the debtor. CCI mailed three letters to the Weisses, dated October 29, November 12, and November 27, which directly requested they pay the $255 bill. The first two letters were labeled pre-collect. On December 3, an employee of CCI called the Weisses at home regarding their bill. Shawtee Weiss ended the conversation by hanging up the phone.

[¶ 3] During full-collection, CCI also makes efforts to determine the debtor’s assets, in case a judgment is obtained. These efforts include sending “vehicle inquiry letters” to the North Dakota Department of Motor Vehicles (“DMV”) to request information on the debtor’s vehicles and requesting UCC searches and credit reports. Debtors are not informed when CCI requests UCC searches or credit reports. In contrast, Dvirnak explained CCI’s policy was to send letters to debtors informing them CCI had made an inquiry about their vehicles. A group of vehicle inquiry letters are sent to the DMV once a week, and the corresponding letters to debtors are mailed on various days of the week. Thus, under CCI’s system, the letter to the DMV and the corresponding letter to the debtor should be sent less than a week apart.

[¶ 4] The Weisses received a fourth letter (“vehicle letter”) informing them CCI had requested information about their vehicles on December 7. The letter stated:

GREETINGS:
PLEASE LET THIS LETTER SERVE AS ACKNOWLEDGMENT THAT OUR AGENCY HAS REQUESTED INFORMATION AND MADE AN INQUIRY TO THE MOTOR VEHICLE DEPARTMENT, REGARDING YOUR MOTOR VEHICLE(S).
SHOULD YOU HAVE ANY QUESTIONS REGARDING THIS CORRESPONDENCE, PLEASE CALL YOUR ACCOUNT REPRESENTATIVE AT....

YOURS VERY TRULY,

COLLECTION CENTER INC.

THIS IS A COMMUNICATION FROM A DEBT COLLECTOR. THIS IS AN ATTEMPT TO COLLECT A DEBT. ANY INFORMATION OBTAINED WILL BE USED FOR THAT PURPOSE.

[¶ 5] However, the DMV apparently never received CCI’s vehicle inquiry letter requesting information about the Weisses’ vehicles. Dvirnak explained:

CCI sent a batch of vehicle inquiry letters to the DMV and also sent out vehicle information letters to debtors notifying them that an inquiry had been made with the DMV. To the best of my knowledge, the DMV has not received the batch of letters which included the Weiss letter. I am not aware of why the vehicle inquiry letter did not arrive at the DMV. If CCI failed to send the vehicle inquiry letters to the DMV on December 7, 2001, such a mistake was inadvertent and unintentional, because CCDs process of sending letters is computerized. CCI fully intended to send the vehicle [inquiry] letters to the DMV on December 7, 2001.

[¶ 6] The Weisses allege CCI’s attempts to collect the $255 debt violated the Act. They sought certification of the case as a class action on the claims. The Weisses also claimed CCI, its representatives, and Medcenter were liable for negligent and intentional infliction of emotional distress. CCI moved for summary judgment on all counts of the complaint, and Medcenter joined CCI’s motion. The trial court allowed additional time for CCI to complete the Weisses’ discovery requests and for the Weisses to present additional information by affidavit to the court in response to CCI’s summary judgment motion. Thereafter, the trial court granted CCI’s motion for summary judgment.

[¶ 7] On appeal, the Weisses argue CCI, through the vehicle letter, implicitly threatened to repossess the Weisses’ vehicle in violation of the Act. The Weisses also contend CCI’s collection efforts on behalf of Medcenter constitute intentional infliction of emotional distress.

II

[¶ 8] Summary judgment is a procedural device which promptly resolves an action on the merits , without a trial if the evidence shows either party is entitled to judgment as a matter of law and no dispute exists as to either the material facts or the reasonable inferences to be drawn from undisputed facts, or if resolving the factual disputes will not change the result. Hoffner v. Johnson, 2003 ND 79, ¶ 5, 660 N.W.2d 909. If reasonable persons could reach only one conclusion from the facts, issues of fact may become issues of law. Fetch v. Quam, 2001 ND 48, ¶ 8, 623 N.W.2d 357. “Even undisputed facts do not justify summary judgment if reasonable differences of opinion exist as to the inferences to be drawn from those facts.” Meide v. Stenehjem, 2002 ND 128, ¶ 6, 649 N.W.2d 532. When reviewing a summary judgment, this Court views the evidence in the light most favorable to the non-moving party and gives that party the benefit of all favorable inferences which reasonably can be drawn from the evidence. Hoffner, at ¶ 5. We review de novo the question of law whether the trial court properly granted summary judgment. Id.

Ill

A

[¶ 9] In 1977 Congress enacted the Fair Debt Collection Practices Act for the purpose of eliminating abusive, deceptive, and unfair debt collection practices. 15 U.S.C. § 1692. The Act defines multiple terms, and for the purposes of this opinion, we assume the Weisses are “consumers,” CCI is a “debt collector,” and the money owed to Medcenter is a “debt,” as those terms are defined by the Act. 15 U.S.C. § 1692a.

[¶ 10] Under the Fair Debt Collection Practices Act an action may be brought “in any appropriate United States district court without regard to the amount in controversy, or in any other court of competent jurisdiction, within one year from the date on which the violation occurs.” 15 U.S.C. § 1692k(d). Thus, an action for unfair debt collection practices under the Act may be maintained in either state or federal court. See, e.g., Itri v. Equibank, N.A., 318 Pa.Super. 268, 464 A.2d 1336, 1342-43 (1983). Cf Kristensen v. Strinden, 343 N.W.2d 67, 69-71 (N.D. 1983) (noting North Dakota courts are vested with concurrent jurisdiction in actions under 42 U.S.C. § 1988 and the State Constitution does not permit State courts any discretion in determining whether or not to entertain actions properly brought before them).

[¶ 11] The Act bars using any false, deceptive, or misleading representations or means to collect a debt. 15 U.S.C. § 1692e (providing a nonexclusive list of sixteen practices which violate the Act). The most widely used test to determine whether a collection letter violates § 1692e is the objective “least-sophistieated-con-sumer standard.” Clomon v. Jackson, 988 F.2d 1314, 1318 (2nd Cir.1993); see also Russell v. Equifax A.R.S., 74 F.3d 30, 34 (2nd Cir.1996) (“The Act is aimed at protecting consumers in general from abusive debt collection practices and the test is how the least sophisticated consumer — one not having the astuteness of a ‘Philadelphia lawyer’ or even the sophistication of the average, everyday, common consumer — understands the notice he or she receives.”). But see Gammon v. GC Services Ltd. Partnership, 27 F.3d 1254, 1257 (7th Cir.1994) (stating the Seventh Circuit will apply an “unsophisticated consumer” standard).

[¶ 12] The least-sophisticated-consumer standard is more rigorous than determining whether a “reasonable consumer” would find a debt collector’s communications false, deceptive, or misleading. Dutton v. Wolhar, 809 F.Supp. 1130, 1136 (D.Del.1992); see also Wade v. Regional Credit Ass’n, 87 F.3d 1098, 1100 (9th Cir.1996) (finding “a violation of Section 1692e if [the debt collector’s] letter and telephone call are likely to deceive or mislead a hypothetical ‘least sophisticated debtor’ ”). However, courts apply this standard in a way which protects debt collectors from unreasonable misinterpretations of collection notices. Clomon, 988 F.2d at 1319 (“emphasiz[ing] that in crafting a norm that protects the naive and the credulous ... courts have carefully preserved the concept of reasonableness”). Following the majority of other courts, we evaluate the Weisses’ claims using the least-sophisticated-consumer standard.

[¶ 13] The Weisses claim the vehicle letter they received violates 15 U.S.C. § 1692e(4), which prohibits:

The representation or implication that nonpayment of any debt will result in the, arrest or imprisonment of any person or the seizure, garnishment, attachment, or sale of any property or wages of any person unless such action is lawful and the debt collector or creditor intends to take such action.

[¶ 14] To demonstrate a § 1692e(4) violation, the Weisses must show (1) CCI represented or implied nonpayment of their debt would result in one of the above actions and (2) CCI could not lawfully take such action or did not intend to do so.

[¶ 15] First, we examine the Weisses’ contention that the least sophisticated consumer would interpret the vehicle letter as an implicit threat to seize their vehicle. CCI analogizes the vehicle letter to a letter from a collection agency to a debtor in Wade v. Regional Credit Ass’n, 87 F.3d 1098 (9th Cir.1996). The letter in Wade stated, in part: “WHY HAVEN’T WE HEARD FROM YOU? OUR RECORDS STILL SHOW THIS AMOUNT OWING. If not paid TODAY, it may STOP YOU FROM OBTAINING credit TOMORROW. PROTECT YOUR CREDIT REPUTATION. SEND PAYMENT TODAY.” Id. at 1099. The Ninth Circuit considered whether the letter violated the Act by “threatening] to take any action that cannot legally be taken or that is not intended to be taken,” because the debt collectors did not have a license to collect debts in the debtor’s state of residence. Id. at 1100 (quoting 15 U.S.C. § 1692e(5)). The court held the-letter was not a threat to take action that could not legally be taken and concluded the letter was informational, stating “[t]he least sophisticated debtor would construe the notice as a prudential reminder, not as a threat to take action.” Id.

[¶ 16] CCI contends the vehicle letter is also a “for your information” letter and even the least sophisticated consumer would not regard the letter as an implicit threat that nonpayment would result in any action. Other courts have rejected similar “just stating the facts” arguments because the debt collectors were “not simply intending to provide a public service to the recipients of its notices.” See, e.g., Gradisher v. Check Enforcement Unit, Inc., 210 F.Supp.2d 907, 917 n. 3 (W.D.Mich.2002). The letter in this case stated CCI had “requested information and made an inquiry to the motor vehicle department, regarding your motor vehicle(s).” (capitalized in the original). We are unwilling to conclude as a matter of law that a hypothetical least sophisticated consumer could not interpret CCI’s letter as an implied threat to seize the Weisses’ vehicle, if the debt remained unpaid.

[¶ 17] As previously noted, 15 U.S.C. § 1692e(4) does not prohibit a debt collector from implying that failure to pay a debt will result in the seizure of an individual’s property if “such action is lawful and the debt- collector or creditor intends to take such action.” Thus, the Weisses must show that CCI could not lawfully seize their vehicle or had no intention to do so. The Weisses first argue CCI had no legal right to collect on a small debt by seizing a vehicle. We reject this argument and the reasoning that CCI would not take such action to collect such a small sum. There is no legal prohibition to taking action to collect a small debt, and a collection agency may specifically pursue a small debt, not for the money involved but to deter others from believing they can default on small debts without consequence.

[¶ 18] The Weisses also raise the issue of whether CCI intended to follow through on its implicit threat to seize their vehicle. This issue further distinguishes this case from Wade; here, we do not consider whether CCI legally could take the action allegedly implied by its letter, but whether CCI intended to take such action. See, e.g., United States v. Nat’l Fin. Servs., Inc., 98 F.3d 131, 137-38 (4th Cir.1996) (finding 15 U.S.C. § 1692e(5) was violated when a reasonable and least sophisticated debtor would read collection letters as threatening legal action, which debt collector did not intend to take); Irwin v. Mascott, 112 ■ F.Supp.2d 937, 953 (N.D.Cal.2000) (holding debt collector violated § 1692e(4) by sending letters threatening post-judgment remedies which it did not intend to seek because its “empty threats [were] issued in an attempt to extract money”); Van Westrienen v. Am-ericontinental Collection Corp., 94 F.Supp.2d 1087, 1102 (D.0r.2000) (stating “[e]ven if defendants made a [§ 1692e(4)] misrepresentation from the point of -view of the ‘least sophisticated debtor,’ the central issue is whether defendants intended to do what plaintiffs feared”).

[¶ 19] The facts demonstrate the DMV apparently never received the corresponding vehicle inquiry letter to the Weisses’ vehicle letter. ■ CCI contends a mistake occurred and correctly notes debt collectors are protected from liability under the Act “if the debt collector shows by a preponderance of evidence that the violation was not intentional and resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid any such error.” 15 U.S.C. § 1692k(c). The Weisses further question whether CCI has ever levied upon a vehicle or intended to do so. In response to the Weisses’ discovery requests, CCI stated it sent 160 vehicle inquiry letters to the DMV. However, it did not have records as to how many vehicles it had levied upon. Furthermore, the Weisses contend CCI’s pattern of sending debtors letters informing them about the DMV inquiries evidences a pattern to frighten debtors into paying. The Weisses reason that CCI does not send similar letters notifying debtors it has requested UCC searches or credit reports because many debtors would be unaware of the implications of such requests.

[¶ 20] We conclude the letter, when considered with these facts, raises questions regarding CCI’s intent. Whether or not the vehicle letter violated 15 U.S.C. § 1692e(4) is a question of fact for the fact finder to decide. We reverse the summary judgment and remand for trial to determine whether CCI violated the Act.

B

[¶ 21] The Weisses also argue the trial court erred in granting summary judgment on their claim for intentional infliction of emotional distress against CCI and its representatives. Emotional distress damages have been held compensa-ble as actual damages in Fair Debt Collection Practices Act actions. See, e.g., Teng v. Metropolitan Retail Recovery, 851 F.Supp. 61, 68-69 (E.D.N.Y.1994). In North Dakota, we have stated a cause of action for intentional infliction of emotional distress requires proof of “(1) extreme and outrageous conduct that is (2) intentional or reckless and that causes (3) severe emotional distress.” Muchow v. Lindblad, 435 N.W.2d 918, 923-24 (N.D.1989) (citing Restatement (Second) of Torts § 46 (1965)). Liability is narrowly limited to extreme and outrageous conduct:

It has not been enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by “malice,” or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort. Liability has been- found only where the conduct has been so outrageous in character, and 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. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, “Outrageous!”
The liability clearly does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. The rough edges of our society are still in need of a' good deal of filing down, and in the meantime plaintiffs must necessarily be expected and required to be hardened to a certain amount of rough language, and to occasional acts that are definitely inconsiderate and unkind. There is no occasion for the law to intervene in every case where some one’s feelings are hurt.

Id. at 924 (quoting Restatement (Second) of Torts § 46 (1965)). See also Hougum v. Valley Mem. Homes, 1998 ND 24, ¶ 26, 574 N.W.2d 812.

[¶22] Over a period of three months, CCI. contacted the Weisses four times by letter and once on the telephone; the record contains copies of these letters and a tape of the telephone call. Shawtee stated the vehicle letter, in particular, “scared” and “upset” her because she was afraid CCI might take their vehicles,- causing Duffy to lose his job. After reviewing the record and viewing the evidence in the light most favorable to the Weisses, we conclude reasonable persons could not find the conduct of CCI approached “extreme and outrageous conduct.” Compare Midas Muffler Shop v. Ellison, 133 Ariz. 194, 650 P.2d 496, 500 (Ct.App.1982) (concluding collection agency was not liable for intentional infliction of emotional distress when it called debtor six times over three months and did not use language considered utterly intolerable in a civilized society, and debtor testified the calls upset her, made her cry, and caused her to lose sleep) and In re Baker, 18 B.R. 243, 245-46 (Bankr.W.D.N.Y.1982) (dismissing debt- or’s counterclaim against bank for emotional distress after concluding the mailing of numerous letters and notices, telephoning debtor over 100 times, and making two personal visits was not outrageous, atrocious, or indecent conduct) with Margita v. Diamond Mortg. Corp., 159 MichApp. 181, 406 N.W.2d 268, 272 (1987) (concluding summary judgment was inappropriate on debtors’ intentional infliction of emotional distress claim when for two years a mortgage company continually attempted to collect a debt that was never overdue through abusive telephone calls, letters charging late fees, and threats of foreclosure). Thus, summary judgment was proper on the Weisses’ intentional infliction of emotional distress claim against CCI.

C

[¶ 23] The Weisses also contend Med-center, because of CCI’s conduct, should be liable for intentional inflection of emotional distress. However, the record does not reflect that Medcenter engaged in any independent action, nor is there evidence in the record that Medcenter condoned or had knowledge of CCI engaging in collection practices prohibited by the Act. Thus, the Weisses’ claim against Medcenter for intentional infliction of emotional distress depends on CCI’s liability. Because we have affirmed summary judgment for CCI on this issue, we affirm the summary judgment for Medcenter as well.

D

[¶ 24] Under N.D.R.App.P. 38, CCI and Medcenter have both requested costs and attorney fees, contending the Weisses’ appeal is frivolous. “An appeal is frivolous if it is flagrantly groundless, devoid of merit, or demonstrates persistence in the course of litigation which could be seen as evidence of bad faith.” Larson v. Larson, 2002 ND 196, ¶ 13, 653 N.W.2d 869. For the reasons discussed above, the appeal is not frivolous, and we deny the requests for costs and attorney fees under N.D.R.App.P. 38.

IV

[¶ 25] We reverse the summary judgment dismissing the Weisses’ claims under the Fair Debt Collection Practices Act against CCI and its representatives and remand for trial. We affirm the summary judgment on all other claims.

[¶ 26] DALE V. SANDSTROM, WILLIAM A. NEUMANN, MARY MUEHLEN MARING, and CAROL RONNING KAPSNER, JJ., concur.

      . The Act requires that collection notices contain this statement. 15 U.S.C. § 1692e(ll).


author: NEUMANN, Justice.

text:
    2003 ND 130
    Chris Ann McCLURE, Plaintiff and Appellant, v. Bruce Duane McCLURE, Defendant and Appellee.
    No. 20020351.
    Supreme Court of North Dakota.
    Aug. 20, 2003.
    Tina M. Heinrich (argued) and Leah Jo Viste (appeared), Assistant State’s Attorneys, Minot, N.D., for plaintiff and appellant.
    Bruce Duane McClure, defendant and appellee; no appearance.
   NEUMANN, Justice.

[¶ 1] The Minot Regional Child Support Enforcement Unit (the “Unit”) appealed an amended order fixing Bruce Duane McClure’s child support obligation. We conclude the trial court erred as a matter of law in imputing income to Bruce at the minimum wage, and we reverse and remand.

[¶ 2] Chris Ann McClure and Bruce Duane McClure divorced in South Carolina in 1994. Chris was awarded custody of their four children and Bruce was ordered to pay child support of $341 per month. The South Carolina order was registered in North Dakota for enforcement here on November 17, 2000. The notice of registration specified an arrearage of $26,238.

[f 3] On August 8, 2002, the Unit moved for an amended order modifying Bruce’s child support obligation from $341 per month to $465 per month. At a hearing on September 23, 2002, Bruce testified, among other things: (1) he works about 22.5 hours per week at Miracle Mart for $6.15 per hour; (2) he has “a Bachelor’s Degree in Social Behavioral Science and also one in Computer Information Systems;” (3) he worked “in the computer field for 25 years”; (4) he is not disabled; (5) he has no children living with him; and (6) “it is illogical to assess me at an income that I no longer make.”

[¶4] The Unit introduced Exhibit 3, which showed that Bruce’s present income of $6.15 per hour for 22.5 hours per week is a gross income of $7,196 per year, compared to minimum wage of $5.15 per hour, which leads to a gross income of $10,320 per year. Exhibit 3 showed Bruce’s highest income in the last 36 months was $19,939 in 2000, which, under the guidelines, required a child support obligation of $465 per month for four children.

[¶ 5] The trial court found, among other things: (1) “Bruce is not employed full-time,” (2) Bruce “has not earned at least minimum wage, full-time” in over a year, (3) “Bruce is underemployed,” (4) Bruce “does not qualify for any exceptions to the imputation of income,” (5) “income must be imputed,” and (6) “the calculations in the

Minot Regional Child Support Enforcement Unit’s Exhibit 3[are] not disputed.” The court further found:

13. Since termination from Sykes, Bruce has had a difficult time securing other employment. As a consequence he is having difficulty paying his expenses.
16. Since Bruce is having a difficult time applying for and securing employment the Court denies the Minot Regional Child Support Enforcement Unit’s Motion for Amended Judgment according to the amount of NDAC § 75-02-04.1-07(3)(c), ninety percent of 2000 gross income and grants a modification of child support amount at the imputation of income at minimum wage NDAC § 75 — 02—04.1—07(3) (a) which is net monthly income of $754 and a child support obligation for four children of $264 per month.

The trial court ordered Bruce to pay child support of $264 per month and $26 per month toward the existing arrearage.

[¶ 6] The Unit appealed, contending the trial court erred in imputing income to Bruce at the minimum wage, and arguing income should be imputed to him at ninety percent of his 2000 gross income, resulting in a child support obligation of $465 per month for four children.

[¶ 7] “A parent has a duty to support his children to the best of his abilities, not simply to his inclinations.” Nelson v. Nelson, 547 N.W.2d 741, 746 (N.D.1996). “Earning capacity is a resource available to an obligor.” Surerus v. Matuska, 548 N.W.2d 384, 386 (N.D.1996). The child support guidelines established by the North Dakota Department of Human Services in accordance with N.D.C.C. § 14-09-09.7 “are administrative rules having the force and effect of law.” Buch holz v. Buchholz, 1999 ND 36, ¶ 11 n. 1, 590 N.W.2d 215. “A court errs as a matter of law when it fails to comply with the requirements of the child support guidelines in determining an obligor’s child support obligation.” Minar v. Minar, 2001 ND 74, ¶ 10, 625 N.W.2d 518; Lauer v. Lauer, 2000 ND 82, ¶ 3, 609 N.W.2d 450.

[¶ 8] The child support guidelines provide in N.D. Admin. Code § 75-02-04.1-07(3):

3. Except as provided in subsections 4, 5, and 9, monthly gross income based on earning capacity equal to the greatest of subdivisions a through c, less actual gross earnings, must be imputed to an obligor who is unemployed or underemployed.
a. An amount equal to one hundred sixty-seven times the hourly federal minimum wage.
b. An amount equal to six-tenths of prevailing gross monthly earnings in the community of persons with similar work history and occupational qualifications.
c. An amount equal to ninety percent of the obligor’s greatest average gross monthly earnings, in any twelve consecutive months beginning on or after thirty-six months before commencement of the proceeding before the court, for which reliable evidence is provided.

The child support guideline provisions on underemployed obligors are tied to an obli-gor’s earning capacity, not the amount of time the obligor works, Nelson, 547 N.W.2d at 746, or solely upon the obligor’s actual income, Logan v. Bush, 2000 ND 203, ¶ 9, 621 N.W.2d 314. “The guidelines require ‘monthly gross income based on earning capacity equal to the greatest of subdivisions a through c, less actual gross earnings, ... be imputed to an obligor who is ... underemployed.’ N.D. Admin. C. 75-02-04.1-07(3) (our emphasis).” Berg v. Ullman, 1998 ND 74, ¶ 18, 576 N.W.2d 218. In imputing income under N.D. Admin. Code § 75-02-04.1-07(3), “[t]he subdivision resulting in the greatest imputed income must be used.” Buchholz, 1999 ND 36, ¶ 14, 590 N.W.2d 215..

[¶ 9] Because the trial court imputed income to Bruce at minimum wage, instead of in accordance with subdivision c, which would have resulted in the greatest imputed income under subdivisions a through c of N.D. Admin. Code § 75-02-04.1-07(3), we conclude the trial court erred as a matter of law in failing to comply with the child support guidelines in fixing Bruce’s child support obligation.

[¶ 10] The order is reversed and the matter is remanded for entry of an order complying with the child support guidelines, which would impose upon Bruce a child support obligation of $465 per month for four children.

[¶ 11] GERALD W. VANDE WALLE, C.J., MARY MUEHLEN MARING, CAROL RONNING KAPSNER and DALE V. SANDSTROM, JJ., concur.