author: LANSING, Judge.

text:
    Dennis MANSON, et al., Appellants, v. DAIN BOSWORTH INCORPORATED, et al., Respondents.
    No. C8-98-458.
    Court of Appeals of Minnesota.
    July 28, 1998.
    Review Denied Oct. 20, 1998.

      Rebecca E. Bender, The Bender Law Firm, P.A., Minneapolis, for appellants.
    James B. Lynch, Katherine McConahay Nealon, Dorsey & Whitney, LLP, Minneapolis, for respondents.
    Considered and decided by LANSING, P.J., RANDALL, and SCHULTZ, JJ.

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

   OPINION

LANSING, Judge.

A National Association of Securities Dealers (NASD) arbitration panel found against the claimants in a dispute over investment advice and stock purchases. The claimants applied to the district court to vacate the award pursuant to the Minnesota Arbitration Act (MAA) and the Federal Arbitration Act (FAA). The district court dismissed the proceedings, finding that the claimants had failed to properly serve the application to vacate under Minnesota law. Because the district court correctly applied Minnesota’s procedural requirements to the parties’ application to vacate the arbitration award, we affirm.

FACTS

In May 1996, appellants Dennis Manson and his daughter, Melissa Krueger, brought claims in arbitration against Dain Bosworth, their Dain broker, and the Dain officer charged with supervising the broker. Manson and Krueger brought their claims under Minnesota law, alleging misrepresentation, negligence, unauthorized trading, and unsuitable solicited recommendations.

Manson had signed a margin agreement in 1992 that contained both an agreement to arbitrate and a choice-of-law provision. The agreement to arbitrate provided that the Federal Arbitration Act would govern all questions of arbitrability; the choice-of-law provision specified that the agreement would be governed by Minnesota law. Krueger had not signed a margin agreement, but joined Manson as a co-claimant in the arbitration.

After a four-day hearing in Minneapolis in April 1997, the NASD arbitrators found against Manson and Krueger and dismissed their claims. Manson and Krueger’s attorney received a copy of the award on May 6, 1997, and served notice on Dain Bosworth’s attorney of an application to vacate the award in Hennepin County District Court. The notice was served on August 4, 1997, exactly 90 days after receipt of a copy of the award.

Relying on the margin agreement, the district court concluded that the FAA governed the arbitrability of disputes but that all other issues were controlled by Minnesota law. The court determined Manson and Krueger failed under Minnesota law to properly serve notice of their application to vacate the arbitration award because the notice did not satisfy the requirements of Minn.R.Civ.P. 4.03. Manson and Krueger now appeal.

- ISSUES

I. Did the district court err in determining that Minnesota’s requirements for service of process apply to an application in Minnesota state court to vacate an arbitration conducted pursuant to the MAA and the FAA?

II. Does the FAA preempt the application of Minnesota’s procedural rules for service of process?

ANALYSIS

The district court’s power to enforce or vacate an arbitration award is created by statute. See Minn.Stat. §§ 572.19, 572.24 (1996); AFSCME Council 96 v. Arrowhead Reg. Corr. Bd., 356 N.W.2d 295, 299-300 (Minn.1984). The construction of a statute is a question of law, fully reviewable by an appellate court. Hibbing Educ. Ass’n v. Public Employment Relations Bd., 369 N.W.2d 527, 529 (Minn.1985). The arbitrators’ authority to resolve disputes is derived from the parties agreeing in advance to submit a particular grievance to arbitration. Johnson v. Piper Jaffray, 530 N.W.2d 790, 795-96 (Minn.1995). As with the interpretation of any contract, the district court’s construction of the contract is subject to de novo review. Id. at 795.

I

It is well established that to initiate an action in a Minnesota court, a plaintiff must follow the procedures set forth in the Minnesota Rules of Civil Procedure. MinN.R.Civ.P. 3.01; Bloom v. American Express Co., 222 Minn. 249, 257, 23 N.W.2d 570, 575 (1946) (“Each state has the right to prescribe by law how its citizens shall be brought into its courts.”) (quoting 3 Beale, Conflict of Laws § 586.1). Thus, the law of the forum determines the proper method for service of process. Bloom, 222 Minn, at 256, 23 N.W.2d at 575.

The specific requirements for service of a summons in Minnesota are stated in rule 4, which provides for personal service on an individual or acknowledged service by mail. Minn.R.Civ.P. 4.03 (personal service), 4.05 (service by mail). If the manner of service is not authorized by rule 4, it is not effective. See Duncan Elec. Co., Inc. v. Trans Data, Inc., 325 N.W.2d 811, 812 (Minn.1982). Whether a summons and complaint is properly served is a jurisdictional question of law, McBride v. Bitner, 310 N.W.2d 558, 562 (Minn. 1981), which this court reviews de novo. Frostr-Benco Elec. Ass’n v. Minnesota Pub. Utils. Comm’n, 358 N.W.2d 639, 642 (Minn.1982); Amdahl v. Stonewall Ins. Co., 484 N.W.2d 811, 814 (Minn.App.1992), review denied (Minn. July 16,1992). Manson and Krueger brought their motion to vacate in a Minnesota state court. Accordingly, they must comply with Minnesota’s requirements for initiation of an action.

Service of process on an opposing party in a proceeding to vacate an arbitration award is further controlled by statute:

Applications to Court

Except as otherwise provided, an application to the court under this chapter shall be by motion and shall be heard in the manner and upon the notice provided by law or rule of court for the making and hearing of motions. Unless the parties have agreed otherwise, notice of an initial application for an order shall be served in the manner provided for the service of a summons in an action.

Minn.Stat. § 572.23 (1996) (emphasis added).

Manson and Krueger’s motion to vacate was an initial application for an order; thus, they were required to serve notice of their application in the manner provided for service of a summons. Id. Under Minn.R.Civ.P. 4.03, a summons must be personally, served. The exception in Minn. R.Civ.P. 4.05 for service by mail with a responsive acknowledgement does not apply because no acknowledgement of service was requested or obtained. See Minn. R.Civ.P. 4.05 (provisions for service by mail when voluntarily acknowledged). Under rule 4.03, service on a party’s attorney is also ineffective. See Minn.R.Civ.P. 4.03 (designating proper recipients of service of summons).

Minn.Stat. § 572.23 purports to create an exception to the general service requirements for initiating judicial review when the parties have “agreed otherwise.” Neither party has argued that this provision is an unconstitutional encroachment on the judicial power to establish rules of court procedure, and our analysis therefore proceeds on the assumption that the exception in Minn.Stat. § 572.23 is a constitutional exercise of legislative power.

Manson and Krueger argue that the proceeding is subject to the FAA, and therefore service by mail on Dain Bos-worth’s attorney was effective. See 9 U.S.C. § 12 (1996) (notice of motion to vacate, modify, or correct an award must be served upon adverse party or his attorney); Fed.R.Civ.P. 5(b) (when service on an attorney is permitted under the rules, it is complete upon mailing). We agree that the FAA specifically provides that notice of a motion to vacate an award “must be served upon the adverse party or his attorney.” 9 U.S.C. § 12. But the FAA does not address whether that provision governs initial applications to the court or whether the service must be personal or can be accomplished by mail.

Manson and Krueger advance their arguments jointly. But because Manson signed the margin agreement that incorporated the FAA and Krueger did not, then-arguments must be analyzed separately.

In signing the margin agreement, Manson agreed to the following key provisions:

12. AGREEMENT TO ARBITRATE CONTROVERSIES.
$ ⅜ $ ⅜
I agree * ⅝ ⅜ that all controversies which may arise between me and Dain Bosworth Incorporated or any of its present or former agents or employees concerning any transaction or the construction, performance or breach of this or any other agreement between us, whether the transaction or the agreement is entered into prior, on, or subsequent to the date hereof, shall be determined by arbitration before and in accordance with the rules then in existence of the New York Stock Exchange or the National Association of Securities Dealers, the forum to be selected by the party initiating the arbitration. The arbitrability of disputes under this agreement shall be governed by the Federal Arbitration Act
‡ ‡ ⅛ ⅛
15. GOVERNING LAW. Except as otherwise provided in paragraph 12, this agreement and its enforcement will be governed by the laws of the State of Minnesota.

(Emphasis added.)

Under this agreement, the FAA governs the arbitrability of disputes, and Minnesota law governs all other issues — including questions of procedure such as service of process. See Pirsig v. Pleasant Mound Mut. Fire Ins. Co., 512 N.W.2d 342, 343 (Minn.App.1994) (arbitrability means “the authority of the arbitrators to hear the matter before them”) (citing Koranda v. Austin Mut. Ins. Co., 397 N.W.2d 357, 360-61 (Minn.App.1986), review denied (Minn. Feb. 13, 1987)). Consequently, even if the FAA provisions could be read to vary the method of service, the margin agreement provides that Minnesota law controls all issues except the arbitrability of disputes. Dain Bosworth and Manson did not agree to a method of service different from the provisions of Minnesota law.

Krueger did not sign the margin agreement, and she cannot rely on its provisions to alter the requirements for service of the application for judicial review. Because there is no agreement between Krueger and Dain Bosworth as to the manner of service, Krueger is subject to Minnesota’s service requirements.

We reject as meritless the argument that the FAA should apply because Manson and Krueger referred to it in then-motion to vacate. This unilateral act does not evidence an agreement between the parties to apply other procedural rules for service of an initial application for an order. See Minn.Stat. § 572.23 (Minnesota procedural rules apply to motion to vacate arbitration decision unless parties agreed otherwise in arbitration agreement).

II

Manson and Krueger’s second argument is that the FAA and relevant portions of the Federal Rules of Civil Procedure preempt the MAA and Minnesota service requirements. Reserving the issue of whether personal jurisdictional requirements are preemptible, we address the preemption arguments. Enacted to ensure that “private arbitration agreements are enforced according to their terms,” the FAA applies to arbitration agreements arising out of transactions involving interstate commerce. Volt Info. Sciences, Inc. v. Board of Trustees of Stanford University, 489 U.S. 468, 478, 109 S.Ct. 1248, 1255, 103 L.Ed.2d 488 (1989). Because the FAA is designed to give effect to private arbitration agreements, parties may agree to arbitrate disputes under state law instead of the FAA — so long as the designated state law does not “require a judicial forum for resolution of claims which the contracting parties agreed to resolve by arbitration.” Id. (citing Southland Corp. v. Keating, 465 U.S. 1, 10, 104 S.Ct. 852, 858, 79 L.Ed.2d 1 (1984)).

Although the FAA does not contain an express preemption provision and does not reflect congressional intent to occupy the entire field of arbitration, the federal act may preempt a state law “to the extent that it ‘stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.’ ” Volt, 489 U.S. at 477, 109 S.Ct. at 1255 (citing Hines v. Davidowitz, 312 U.S. 52, 67, 61 S.Ct. 399, 404, 85 L.Ed. 581 (1941)). Put another way, courts may not “invalidate arbitration agreements under state laws applicable only to arbitration provisions.” Doctor’s Associates, Inc. v. Casarotto, 517 U.S. 681, 687, 116 S.Ct. 1652, 1656,134 L.Ed.2d 902 (1996).

Because Minnesota’s personal service requirements are procedural, the district court did not err by applying Minnesota’s requirements instead of the corresponding FAA provision. First, the Supreme Court has not held that federal procedural rules apply to proceedings in state court, even when the FAA preempts a substantive state law. See Southland Corp., 465 U.S. at 16 n. 10, 104 S.Ct. at 861 n. 10 (“In holding that the Arbitration Act pre-empts a state law that withdraws the power to enforce arbitration agreements, we do not hold that §§ 3 and 4 of the Arbitration Act apply to proceedings in state courts.”). In fact, in Volt, the Court explained:

There is no federal policy favoring arbitration under a certain set of procedural rules; the federal policy is simply to ensure the enforceability, according to their terms, of private agreements to arbitrate. Interpreting a choice-of-law clause to make applicable state rules governing the conduct of arbitration— rules which are manifestly designed to encourage resort to the arbitral process — simply does not offend the rule of liberal construction set forth in Moses H. Cone, nor does it offend any other policy embodied in the FAA.

Volt, 489 U.S. at 476, 109 S.Ct. at 1254; see also Atlantic Painting & Contracting, Inc. v. Nashville Bridge Co., 670 S.W.2d 841, 846 (Ky.1984) (procedural aspects of FAA are confined to federal cases and there is “nothing in the Act remotely suggesting that the ‘motion to vacate’ procedure, including the three month time limitation set up for federal proceedings, has any application at all to such state action”); Xaphes v. Mowry, 478 A.2d 299, 301 (Me. 1984) (state court “not compelled” to apply federal courts’ jurisdictional rule merely because action filed under FAA; therefore, “question of appealability depends on this Court’s interpretation of state procedural requirements”); McClellan v. Barrath Constr. Co., 725 S.W.2d 656, 658 (Mo.Ct. App.1987) (because state courts are not bound by FAA’s procedural provisions, they may look to state law to determine appealability of order compelling arbitration).

Second, although Minnesota courts have not addressed whether state procedural laws apply to actions under the FAA, this court has held that state procedural laws apply to other federal claims brought in state court. See Carter v. Cole, 526 N.W.2d 209, 214 (Minn.App.), aff'd, 539 N.W.2d 241, 241 (Minn.1995).

Finally, we believe the district court’s conclusion would be correct even if these requirements were substantive. The key issue in determining whether the FAA preempts a substantive state law is whether the state law is an obstacle to the purposes and objectives of the FAA. The main purpose and objective of the FAA is to make sure that courts — both state and federal — give effect to private arbitration agreements. Here, the private arbitration agreement established by appellant Manson and respondents Dain Bosworth pro-

vides that the FAA will govern questions of arbitrability while Minnesota law will govern everything else. Accordingly, application of Minnesota law upholds the FAA’s purpose and underlying policies because it gives effect to the parties’ intent. See Ekstrom v. Value Health, Inc., 68 F.3d 1391, 1396 (D.C.Cir.1995) (applying Connecticut’s 30-day limitations period instead of the FAA’s more liberal 90-day period did npt conflict with the FAA’s “primary purpose” and “actually promotes the FAA’s primary goal by enforcing the parties’ contract to arbitrate according to its terms”).

State laws that have been held to be preempted by the FAA are laws that undermine the private arbitration process by making it difficult to enforce the underlying agreement. For example, in Doctor’s Associates, the U.S. Supreme Court held that the FAA preempted a Montana law that imposed on arbitration agreements a special notice requirement that was not applicable to all contracts. 517 U.S. at 687, 116 S.Ct. at 1656-57. The Court determined that the state law directly conflicted with the FAA because it “conditions the enforceability of arbitration agreements on compliance with a special notice requirement not applicable to contracts generally.” Id.

Although appellant Krueger is not subject to the margin agreement, application of Minnesota law to her claim does not interfere with the purpose and objectives of the FAA either. Krueger submitted her claims to arbitration under Minnesota law, participated in a hearing, and received a decision. She brought her motion to vacate under both the MAA and the FAA, but failed to follow the procedural requirements for service under the MAA. Although our decision precludes judicial review of the motion to vacate, it by no means undermines the arbitration process. Unlike preempted “anti-arbitration” laws designed to preclude enforcement of private arbitration agreements, the MAA simply requires claimants to follow the same, procedural requirements for service of process that apply in any other civil action unless they agree otherwise. When there is no evidence the parties have agreed otherwise, courts have no choice but to hold parties to these procedural requirements.

Among Manson and Krueger’s remaining arguments, only two require comment: (1) whether the district court erred in concluding that respondents did not comply with Minnesota’s service requirements; and (2) whether the district court should have ruled on the merits of the appellants’ motion to vacate because they still had time to serve their motion under the provision of Minnesota law that provides for a motion to be brought within 90 days of discovery of “corruption, fraud, or other undue means.” See Minn.Stat. § 572.19 (1996).

As to the first argument, there is no evidence in the record to suggest that Manson and Krueger met the requirements for personal service or service by mail under rule 4. Manson and Krueger simply mailed their motion to the attorney who represented Dain Bosworth during the arbitration. Because Manson and Kruger did not include an acknowledgment of service form in their mailing, and Dain Bosworth did not consent to accept service by mail, this service was not effective. Minn.R.Civ.P. 4.05 (“If acknowledgment of service under this rule is not received by the sender within the time defendant is required by these rules to serve an answer, service shall be ineffectual.”); Coons v. St. Paul Cos., 486 N.W.2d 771, 775 (Minn.App.1992), review denied (Minn. July 16, 1992) (service by mail not perfected without return of acknowledgment form).

Manson and Krueger’s contention that the district court should have ruled on the merits of their dispute because they still had time to effect proper service based upon recently learned evidence of corruption or undue means in the arbitration process also lacks support. According to the record, Manson and Krueger did not personally serve their motion to vacate until January 13 and 14, 1998 — more than one month after the motion hearing on December 4, 1997, and roughly one week after the district court issued its order dismissing their claims without prejudice. Because the motion had not been served on the date of the motion hearing, the court lacked jurisdiction to consider the merits. The district court correctly concluded the issue of whether plaintiffs had additional time to file and serve their motion was not before the court.

DECISION

Although the district court incorrectly implied that the margin agreement applied to both Krueger and Manson, it correctly concluded that Minnesota’s requirements for personal service applied to the parties’ motion to vacate. Moreover, because Minnesota’s requirements for service are general court rules that apply to all civil actions and are not designed to impede private arbitration contracts, these requirements are not preempted by the Federal Arbitration Act.

Affirmed.

      . The issue of whether the preemption doctrine could apply to forum-determined rules for obtaining personal jurisdiction was not raised in the trial court or argued on appeal.


source: Caselaw Access Project

author: BERTRAND PORITSKY, Judge

license: Public Domain

text:
    STATE of Minnesota, Respondent, v. Allen Clarence HOCHSTEIN, Appellant.
    No. C4-00-992.
    Court of Appeals of Minnesota.
    Feb. 27, 2001.

      Mike Hatch, Attorney General, Kelly O’Neill Moller, Assistant Attorney General, St. Paul, MN; and Thomas Kelly, Wright County Attorney, Buffalo, MN, for respondent.
    John M. Stuart, State Public Defender, Steven P. Russett, Assistant Public Defender, Minneapolis, MN, for appellant.
    Considered and decided by HARTEN, Presiding Judge, HANSON, Judge, and PORITSKY, Judge.
   OPINION

BERTRAND PORITSKY, Judge

Appellant, convicted of drug-related offenses and the offense of being a felon in possession of a firearm, raises several issues on appeal. Appellant contends that (1) the state’s failure to follow proper discovery rules prejudiced his defense; (2) the search warrant was not supported by probable cause; (3) the trial court erred in determining he could be impeached with a prior conviction if he chose to testify; (4) the trial court erred in adjudicating him guilty of a lesser-included offense; and (5) the trial court erred in sentencing him for two crimes that arose out of the same behavioral incident. We vacate appellant’s conviction for the first-degree controlled-substance crime and remand for sentencing on the second-degree controlled-substance crime; vacate his sentence for the fifth-degree controlled-substance crime; and affirm the trial court’s rulings that the search warrant was supported by probable cause and that the prior conviction would be admissible to impeach him if he chose to testify.

FACTS

On February 10, 2000, a jury found appellant Allen Clarence Hochstein guilty of the following controlled-substance crimes: first degree, in violation of Minn.Stat. § 152.021, subd. 2(1) (1998) (possession of a mixture weighing 25 or more grams containing methamphetamine); second degree, in violation of Minn.Stat. § 152.022, subd. 2(1) (1998) (possession of a mixture weighing six or more grams containing methamphetamine); and fifth degree, in violation of Minn.Stat. § 152.025, subd. 2(1) (1998) (possession of more than a small amount of marijuana). The jury also found Hochstein guilty of being a felon in possession of a firearm, in violation of MinmStat. § 624.713, subd. 1(b) (1998). The charges arose out of evidence seized from, appellant’s residence, including marijuana, firearms, substances containing methamphetamine, and drug paraphernalia.

On March 17, 2000, the trial court sentenced appellant. On the first-degree controlled-substance crime, the court ordered appellant committed to the custody of the Commissioner of Corrections for 98 months. The court imposed no sentence on the second-degree controlled-substance charge. On the fifth-degree controlled-substance crime, the court adjudicated appellant guilty and committed him to the custody of the Commissioner of Corrections for 15 months, to be served concurrently with the first-degree crime. On the felon-in-possession-of-a-firearm charge, the court adjudicated appellant guilty and committed him to the custody of the Commissioner of Corrections for 60 months, to be served concurrently with the other two sentences.

ISSUES

I. Was it error to admit evidence of the weight of the methamphetamine when the state failed to give appellant notice that the drug would be analyzed?

II. Was the search warrant supported by probable cause?

III. Was it error to rule that appellant’s 1991 conviction could be used to impeach him if he chose to testify?

IV. Was it error to sentence appellant for both controlled substance crimes, in the first and fifth degree?

ANALYSIS

I. Discovery Violation

Appellant contends that the trial court erred by admitting evidence of the weight of the methamphetamine when the state failed to notify him that the drug would be analyzed. The police searched appellant’s residence and seized the evidence on February 13,1999. On February 15, 1999, the police conducted field tests of the substances seized. The substances field-tested positive for marijuana and methamphetamine. The tests also determined that the weight of methamphetamine was 25.4 grams. The state filed a complaint on February 16, 1999. Appellant first appeared in court with an attorney on February 19, 1999. The Bureau of Criminal Apprehension (BCA) weighed the substance in question on February 23 and completed the analysis on March 18, 1999. According to the BCA analysis, the total weight of the substance was 25.7 grams.

On December 2, 1999, appellant made a motion for an order allowing him to conduct his own analysis to determine the weight of the substance. At the hearing on the motion, the state explained that the weight would not match the BCA’s result because the BCA first weighs the substance and then removes a sample for testing. The state also explained that the BCA does not weigh the substance again after testing and that BCA analysts would not be able to determine how much of the sample was used in the analysis. Given the narrow margin between the amount seized, 25.7 grams, and the 25 gram cut-off needed to establish the first-degree offense, it appears the parties agreed that any further analysis of the remaining substance would not yield a valid result on the relevant issue of whether the amount seized was sufficient to establish the first-degree offense. Appellant did not pursue any further analysis.

Minn. R.Crim. P. 9.01, subd. 1(4), requires the state to give the defendant notice before conducting any scientific test or experiment that may preclude any further tests or experiments:

The prosecuting attorney shall disclose and permit defense counsel to inspect and reproduce any results or reports of physical or mental examinations, scientific tests, experiments or comparisons made in connection with the particular case. * * * If a scientific test or experiment of any matter * * * may preclude any further tests or experiments, the prosecuting attorney shall give the defendant reasonable notice and an opportunity to have a qualified expert observe the test or experiment.

See also State v. Freeman, 531 N.W.2d 190, 197 (Minn.1995). The construction of a procedural rule is reviewed de novo. State v. Nerz, 587 N.W.2d 23, 24-25 (Minn. 1998).

Although the state’s testing did not destroy appellant’s ability to retest the substances for their content, it did eliminate appellant’s ability to weigh the substances accurately. We note that the police conducted a field test and weighed the substance prior to charging appellant. At this point it well might have been reasonable for the state not to give notice because the state is under a time constraint to charge the defendant. Here, however, the BCA analysis was not done during the charging phase; it was done after appellant made an appearance with his attorney. We conclude that the failure to give notice was a violation of rule 9.01.

In determining whether to impose sanctions for failure to notify,

the court should consider all relevant factors, including the reason why notice was not given and the extent to which the violation prejudiced the opposing party.

Freeman, 531 N.W.2d at 198 (citation omitted). In this case, the state offers no reason why the notice was not given. The field test result — 25.4 grams — put the prosecutor’s office and the BCA on notice that the BCA’s analysis might reduce the amount of the substance to a level where a further test to determine its'weight would not yield a valid result on a critical issue— whether the state had evidence to convict appellant of a first-degree offense or whether the evidence was sufficient only for a second-degree offense. The failure to give notice prevented appellant from having his own expert observe the test, in violation of the rule. The state’s argument that after the test appellant could still analyze the substance to determine whether it was methamphetamine misses the point. What is critical is the amount of the substance, not its composition.

In Freeman, the court upheld the admission of the state’s evidence notwithstanding the failure to give notice and the fact that the state’s test precluded further testing, because it appeared the state did not act in bad faith and because the state provided defendant with a narrated videotape of the inspection. Id. By contrast, in the present case, the state did not provide appellant with a videotape or any other procedure by which appellant could have his own expert cross-check the weight of the methamphetamine. Nor did the state provide an explanation for its failure to notify appellant.

In general, the trial court is particularly situated to determine the sanction for a discovery abuse, and preclusion is a severe sanction which is not to be lightly invoked. Id. at 197-98. But given the prejudice to appellant, it is our conclusion that it was an abuse of discretion to admit evidence of the weight of the substance. See State v. Schwantes, 314 N.W.2d 243, 245 (Minn.1982) (ordering a new trial for an inadvertent failure to comply with discovery rules). Sending the matter back for a new trial on the first-degree eon-trolled-substance crime will not be an adequate remedy. The only appropriate remedy is to vacate the conviction and remand the matter for resentencing on the second-degree eontrolled-substance crime. See State v. Pflepsen, 590 N.W.2d 759, 766 (Minn.1999) (noting authority to impose a sentence or stay of sentence on a lesser-ineluded offense after the primary offense has been vacated).

Our decision to vacate appellant’s conviction for the first-degree eontrolled-sub-stance crime disposes of appellant’s contention that the trial court erred when it adjudicated him guilty of both first-degree possession and the lesser-included offense of second-degree possession.

II. Search Warrant

Appellant contends that evidence seized from his residence should have been suppressed because the search warrant was not supported by probable cause, specifically alleging that the informants were not reliable and the information was stale.

In determining whether a warrant is supported by probable cause, this court does not review the magistrate’s decision de novo but accords great deference to the probable-cause finding. State v. Harris, 589 N.W.2d 782, 787 (Minn.1999). Review is limited to ensuring that “the issuing judge had a ‘substantial basis’ for concluding that probable cause existed.” State v. Zanter, 535 N.W.2d 624, 633 (Minn.1995) (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983)). “[T]he resolution of doubtful or marginal cases should be largely determined by the preference to be accorded to warrants.’ ” State v. McCloskey, 453 N.W.2d 700, 704 (Minn. 1990) (quoting United States v. Ventresca, 380 U.S. 102, 109, 85 S.Ct. 741, 746, 13 L.Ed.2d 684 (1965)).

In determining whether probable cause existed, the issuing judge and the reviewing court may consider only the information presented in the affidavit offered in support of the search-warrant application. State v. Kahn, 555 N.W.2d 15, 18 (Minn.App.1996). Elements indicating probable cause include information linking the crime to the place to be searched, the freshness of the information, and the reliability of the sources of information. State v. Souto, 578 N.W.2d 744, 747 (Minn.1998). The existence of probable cause based on an informant’s tip is determined by a “totality of the circumstances” test:

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

State v. Wiley, 366 N.W.2d 265, 268 (Minn.1985) (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983)). We find probable cause existed based on (a) appellant’s prior criminal record; (b) the reliability of the informants’ statements, which were corroborated by statements of other informants and by the officer’s independent investigation; and (c) a showing that appellant’s activities constitute an ongoing criminal activity.

First, the affidavit supporting the search warrant application noted that appellant has been arrested three times for drug-related offenses and convicted of a fourth-degree controlled-substance crime. See State v. Lieberg, 553 N.W.2d 51, 56-57 (Minn.App.1996) (finding defendant’s entire history of criminal behavior — not only convictions — helpful and properly considered as one factor in the totality of relevant circumstances for finding probable cause).

Second, the affidavit establishes that the informants’ statements, taken as a whole, show sufficient reliability and basis of knowledge. Although there is no showing of how the first of the three informants learned that appellant was selling methamphetamine, this informant’s statement corroborates, and is corroborated by, the statements of the other two informants. As to the second informant, the affiant police officer verified his/her identity by using the informant’s driver’s license. See State v. Lindquist, 295 Minn. 398, 400, 205 N.W.2d 333, 335 (1973) (“One who voluntarily comes forward and identifies herself is more likely to be telling the truth because she presumably knows that the police could arrest her for making a false report.” (citations omitted)). Also, the police confirmed the second informant’s statement that appellant has a motor home. See State v. Ward, 580 N.W.2d 67, 71 (Minn.App.1998) (finding that reliability may be established by corroboration of “even minor details” that lend credence to the supplied information) (citation omitted). The affidavit established the personal-knowledge basis of the second informant’s statement: he/shé had been to appellant’s home, saw guns there — including an AK 47 — and observed methamphetamine in the home.

The police identified the third informant with a driver’s license, and the third informant also referred to the later-corroborated fact that appellant has a motor home. This informant’s information was based on personal knowledge after visiting appellant’s home and seeing guns near the door. He/she also had a conversation with appellant within 72 hours before execution of the affidavit. In this conversation, the informant talked to appellant about “the drugs,” which, given the context, refers to the drugs appellant brought back from Mexico. Furthermore, the affiant police officer states that, based on his own investigation, he discovered that appellant has no legal source of income.

Finally, appellant’s argument that the information in the warrant was stale is rebutted by the following: first, certain information provided by the third informant was only three days old when the court signed the warrant; and second, information supplied by the affiant and the informants shows that appellant was engaged in ongoing criminal activities. “When an activity is of an ongoing, protracted nature, the passage of time is less significant.” Souto, 578 N.W.2d at 750 (citation omitted). Thus, we conclude that the information is sufficiently current.

III. Impeachment by Use of Prior Conviction

Appellant contends the trial court erred in ruling that his 1991 conviction for possession of methamphetamine could be used to impeach him if he chose to testify. “Whether the probative value of the convictions outweighs their prejudicial effect is a matter left to the discretion of the trial court.” State v. Graham, 371 N.W.2d 204, 208 (Minn.1985) (citations omitted). The trial court’s ruling on the impeachment of a witness by prior conviction will not be reversed absent a clear abuse of that discretion. State v. Ihnot, 575 N.W.2d 581, 584 (Minn.1998). Appellant argues that the prejudicial effect outweighed the probative value because the prior conviction had little impeachment value, the admission deterred his testimony, and his testimony was crucial to the case.

Evidence of prior convictions may be admissible to impeach a defendant’s testimony if the underlying offenses are less than ten years old, punishable by imprisonment in excess of one year, and “the court determines that the probative value of admitting this evidence outweighs its prejudicial effect.” Minn. R. Evid. 609(a)-(b). To determine whether the probative value outweighs the prejudicial effect, the court should consider the factors enumerated in State v. Jones, 271 N.W.2d 534, 538 (Minn.1978):

(1) the impeachment value of the prior crime, (2) the date of the conviction and the defendant’s subsequent history, (3) the similarity of the past crime with the charged crime (the greater the similarity, the greater the reason for not permitting use of the prior crime to impeach), (4) the importance of defendant’s testimony, and (5) the centrality of the credibility issue.

Ihnot, 575 N.W.2d at 586 (quoting State v. Jones, 271 N.W.2d at 538).

A.Impeachment Value

Appellant argues that his prior conviction had little impeachment value because it does not relate to his truthfulness and honesty. While drug convictions are not the type of crime that directly relates to truth or falsity, a crime need not relate directly to truth or falsity to be admissible. State v. Gassler, 505 N.W.2d 62, 67 (Minn. 1993) (“[I]mpeachment by prior crime aids the jury by allowing it to see the whole person and thus to judge better the truth of his testimony.” (quotations omitted)). Also, any prejudice appellant might have suffered is mitigated by his impeachment of Heidi Nelson, using her past drug convictions. See State v. Owens, 373 N.W.2d 313,. 316-17 (Minn.1985) (holding impeachment of defendant by prior conviction fair because defendant impeached state’s witness by prior conviction). Thus, this factor, which might have weighed in favor of exclusion, loses that weight.

B. Age of the Offense

This factor weighs in favor of exclusion because appellant’s 1991 conviction was approximately nine years old at the time of trial.

C. Similarity of the Impeaching Offense

This factor also weighs in favor of exclusion because the fourth-degree conviction for possession of methamphetamine is nearly identical to the charged offenses of possession of methamphetamine.

D. Importance of Appellant’s Testimony

To analyze this factor, it is necessary to ascertain what appellant’s testimony would have been had he testified. In his brief to this court, he makes the vague statement that he would have “explain[ed] to the jury what actually happened.” He then refers to his memorandum to the trial court, in which he stated:

In this case, the prosecution has listed several witnesses who will claim that Mr. Hochstein was in possession of methamphetamine. It is essential that Mr. Hochstein be allowed to explain the relationship between he [sic] and those individuals and whether or not they may have reason to fabricate the truth.

Thus, appellant’s testimony would have been an attempt to impeach the state’s witnesses. All those witnesses were subject to cross-examination at trial, where appellant had available all tools of impeachment. While appellant’s testimony might have helped his case, those matters to which he would have testified were subject to alternate proof, and thus this factor does not weigh in favor of exclusion.

E. Centrality of Appellant’s Credibility

Had appellant testified, the trial may well have come down to an issue of who was lying, and thus appellant’s credibility would have been a central issue, as was the credibility of the state’s witnesses, including Heidi Nelson, who was impeached with her past drug convictions. Appellant concedes that his credibility would have been an issue had he testified. This factor weighs heavily in favor of admitting the prior conviction.

In making the analysis required by Ihnot and Jones, the trial court is not simply to add up the factors and arrive at a mathematical result. Depending on the particular facts of the case, the trial court may assign different weights to different factors. Because the trial court is in a unique position to make this determination, it must be accorded broad discretion. Given our analysis and the broad discretion vested in the trial court on this issue, we cannot say the court abused its discretion in ruling to admit the prior offense to impeach appellant had he chosen to testify.

IV. Sentencing on Both First-Degree and Fifth-Degree Controlled Substance Crimes

Appellant argues that the trial court erred in sentencing him for both possession of methamphetamine and possession of marijuana. Respondent concedes this sentence was error, and we therefore vacate appellant’s sentence for count III, a fifth-degree controlled-substance crime.

DECISION

The trial ■ court properly found the search warrant was supported by probable cause, and properly ruled that appellant’s 1991 conviction could be used to impeach him if he chose to testify. The trial court erred in admitting evidence of the weight of the methamphetamine, and in sentencing appellant for both first and fifth-degree controlled-substance crimes. The case is remanded for sentencing on appellant’s conviction of controlled-substance crime in the second degree.

Affirmed in part, vacated in part, and remanded.

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


author: STONEBURNER, Judge

text:
    Phyllis Kay COKLEY, Respondent, v. CITY OF OTSEGO, a municipality, Appellant.
    No. C7-00-1327.
    Court of Appeals of Minnesota.
    March 6, 2001.
    Review Denied May 15, 2001.

      Robert D. Boedigheimer, Peter J. Ho-rejsi, McCloud & Boedigheimer, P.A., Bloomington, MN, (for respondent).
    Patricia Y. Beety, League of Minnesota Cities, St. Paul, MN, (for appellant).
    Considered and decided by KALITOWSKI, Presiding Judge, HALBROOKS, Judge, and STONEBURNER, Judge.
   OPINION

STONEBURNER, Judge

This is an action by a former employee of the City of Otsego for damages under the Minnesota Whistleblower Act, Minn. Stat. § 181.932 (2000). After a jury verdict in favor of the employee, the City appeals from denial of its motions for JNOV and a new trial, and the district court’s enhancement of the attorney-fee award. Because the employee did not engage in protected activity and failed to establish a causal link between her action and elimination of her position, we reverse.

FACTS

The township of Otsego was incorporated into a city in 1990. When the township’s clerk-treasurer retired in 1995, appellant the City of Otsego (the City) restructured its administrative staff. After several city council meetings and subcommittee meetings, in April 1995, the City employed respondent Phyllis Kay Cokley under a four-year contract, as the City’s first business/finance director and director of economic development.

Cokley’s contract provided for three months advance notice of termination of her position and defined one of Cokley’s duties as to more fully define her job duties, because both positions were newly created. A job description for business-finance director had been developed before Cokley was hired. In October 1995, Cok-ley prepared and presented to the city council a revised job description covering both positions. The city council never approved this version of Cokley’s job description, and the previous job description for the business/finance director remained unamended to include any additional duties regarding the director of economic development position or more fully describe the actual duties Cokley was expected to perform. Both job descriptions included managing the City’s payroll and pay equity issues, supervising OSHA mandate programs, and keeping informed on state and federal legislation as Cokley’s responsibility, but the evidence at trial established that she did not supervise OSHA programs. The exact scope of her duties was disputed at trial.

Cokley became aware that the city clerk and deputy clerk had a practice of scheduling a partial workday, using some vacation time for the hours not worked and then accruing overtime pay for attending evening city council meetings. Cokley, whose responsibilities included issuing checks based on submitted time cards, but not making a determination of the accuracy of those time cards, believed that this practice for accruing overtime did not conform to provisions of the Federal Labor Standards Act (FLSA). In January 1996, in the context of serving on a subcommittee to rewrite the City’s personnel policy, Cok-ley submitted a memorandum to the city clerk who chaired the subcommittee, suggesting changes to the policy about work hours and how overtime was earned and paid. The memorandum states: “[t]he City’s personnel policy discusses employees to whom the Federal Fan Labor Standards Act [FLSA] applies, and yet past procedures regarding overtime and compensatory time have not been in conformance with the Act.”

At about the same time in January 1996, Cokley discussed her concerns regarding FLSA requirements and the clerk’s and deputy clerk’s practices with councilmem-ber Ronald Black, who was also on the subcommittee. According to Cokley, Black, an attorney, told her that her interpretation of FLSA requirements was correct, but he advised her to “leave it alone” because the City had “bigger problems” and the “mayor has his head in the sand” and “somebody’s going to get hurt.” There is no evidence that Cokley raised concerns about the FSLA after January 1996.

Duane Fiedler, a city maintenance employee, self-initiated an OSHA compliance review for the City in 1994 and reported his results to the city council at that time. Fiedler knew Cokley before the City hired her. Fiedler discussed his OSHA concerns with Cokley. Cokley did not independently verify any of Fiedler’s concerns because, she testified, it was not her responsibility. She did, however, arrange a lunch with Fiedler, and councilmember Black in May 1996, at which time Fiedler again expressed his concerns about OSHA compliance. Cokley may have also discussed Fiedler’s concerns with council-member Fournier.

In May 1996, Cokley attended a League of Minnesota Cities Insurance Trust Loss Control Workshop. She submitted a memorandum to the city council summarizing material contained in the sessions of the workshop that she attended. The memorandum notes that the workshop offered tracks in administration, public works, small cities and parks and recreation, and states: “I attended sessions that I thought were most beneficial to the [C]ity in both the administrative and small cities tracks.” One session involved OSHA training requirements. The memorandum states that the City “must provide training and be able to document that training has occurred,” outlines “the 14 most cited training standards for the public sector” discussed, and concludes that “[s]afety training must be done and must be documented.”

One of Cokley’s undisputed duties was to review and recommend insurance carriers and act as liaison between the City and its insurance carriers in order to limit exposure and meet statutory requirements. In early 1996, prior to the annual insurance audit that usually occurred in February or March, Cokley became concerned that the building inspector, who was classified as an independent contractor rather than an employee, had not provided a certificate of insurance. Based on her knowledge and experience, Cokley believed that the building inspector should have been classified as an employee, because he worked out of city hall and was provided with a desk and telephone and code books by the City. Cokley testified that she talked to councilmember Black about not having an insurance certificate for the building inspector and about her concerns that the position was misclassified. Cokley could not recall when this conversation occurred. Cokley testified that if PERA had determined the position should be classified as an employee, the City could have been penalized for not making contributions to the public employee retirement fund, but there is no evidence that she shared this specific concern with Black or any other member of the council.

At trial, Cokley was asked by her attorney: “Did you consider the classification of the building inspector to be unlawful in terms of the independent contractor laws in Minnesota?” to which she responded: ‘Tes.” No evidence of any such law or regulation was provided. Cokley was asked: “Did you suggest to the City that they reclassify him?” She responded: “I suggested to the City in that memorandum that they needed to address that issue.” The memorandum to which Cokley referred is the summary of the workshop described above. In her summary of a session titled “A Cure for the Common CODE” that covered “the current law in Minnesota regarding building inspections,” Cokley wrote: “If the [C]ity has a contracted building inspector, the building inspector must have insurance and indemnify the [C]ity.” And, in a summary of the workshop highlights, Cokley wrote, in bold:

Require independent contractors to carry insurance indemnifying the [Cjity. They must be careful on advise [sic] and suggestion and not act as a consultant regarding building code regulations.

There is nothing in the memorandum about classification of building inspectors as employees or independent contractors.

In November 1996, a new mayor and two new city councilmembers were elected. Cokley wrote a note to the new mayor on November 6th, congratulating him on his election:

I hope you will find time during this interim period to meet with me, to allow me to understand the ideas you want to bring forth as mayor, and to allow me to discuss various issues that I feel are of concern.

At the November 12, 1996 city council meeting, councilmember, mayor-elect Fournier read a prepared statement about the need for reorganization and a city administrator. Fournier moved to eliminate Cokley’s position, contract out the financial duties performed by Cokley and use the savings to fund the position of city administrator. The city council, without any discussion, voted unanimously to proceed with Fournier’s proposal. On the recommendation of the city attorney, the council immediately placed Cokley on administrative leave and scheduled a public hearing for November 19,'1996 to give Cokley an opportunity to respond to the reorganization proposal. At the November 19th meeting, Cokley, through counsel, focused not on whether Cokley’s position should be eliminated, but rather on the process leading up to the proposal and adoption of the motion to eliminate the position. At this meeting the city council voted unanimously in favor of the reorganization proposal. Cokley’s position was eliminated and she was provided with a three-month-severance package.

In 1998, Cokley sued the City under the Minnesota Whistleblower Act, Minn.Stat. § 181.932 (2000). The City moved for summary judgment on the ground that Cokley had failed to establish, as a matter of law, that she had engaged in protected activity under the Act. The district court denied the motion, and the case was tried to a jury. The district court denied the City’s motion for a directed verdict at the close of Cokley’s evidence and the jury returned a special verdict, finding Cokley had made a good faith report of an actual or suspected violation of law and that the City eliminated her position in retaliation for making this report. The jury awarded Cokley damages.

The City moved the court to grant JNOV, a new trial, and remittur. The district court denied the City’s motions for JNOV and a new trial, granted its motion for remittur in part, entered an order for judgment on the jury’s verdict, and awarded Cokley costs and attorney fees with an upward enhancement on the traditional lodestar amount. The City appeals the district court’s denial of its motions for JNOV and a new trial, and the district court’s enhancement of the attorney-fee award.

ISSUES

I. Did Cokley engage in protected activity under the Whistleblower Act?

II. Did Cokley provide evidence of causation sufficient to withstand a motion for a directed verdict or JNOV?

III. Did the district court’s failure to give a special jury instruction defining a good-faith report result in substantial prejudice to the City?

IV. Did the district court err in granting an enhancement to the amount of attorney fees awarded to Cokley?

ANALYSIS .

The City argues that the district court erred in failing to grant its motion for JNOV, because Cokley failed to make a prima facie case under the Minnesota Whistleblower Act, Minn.Stat. § 181.932, subd. 1(a) (2000).

This court reviews the denial of a motion for JNOV de novo. Pouliot v. Fitzsimmons, 582 N.W.2d 221, 224 (Minn. 1998). “The evidence must be considered in the light most favorable to the prevailing party and an appellate court must not set the verdict aside if it can be sustained on any reasonable theory of the evidence.” Id. (citation omitted).

The Whistleblower Act prohibits retaliation against an employee who “in good faith, reports a violation or suspected violation of any federal or state law * ⅜ * to an employer or any governmental body or law enforcement official.” Minn.Stat. § 181.932, subd. 1(a). Minnesota courts have adopted the McDonnell Douglas analysis: the employee has the initial burden to establish a prima facie case, and the burden of production then shifts to the employer to articulate a legitimate, non-retaliatory reason for its action, after which the employee may demonstrate that the employer’s articulated reasons are pre-textual. See McDonnell Douglas Cotp). v.. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973); Phipps v. Clark Oil & Refining Corp., 408 N.W.2d 569, 572 (Minn.1987). At all times the employee has the burden to prove by a preponderance of evidence that the employer’s action was for an impermissible reason. Phipps, 408 N.W.2d at 572.

To establish a prima facie case of retaliatory discharge, the employee must show: “(1) statutorily-protected conduct by the employee; (2) adverse employment action by the employer; and (3) a causal connection between the two.” Hubbard v. United Press Int’l, Inc., 330 N.W.2d 428, 444 (Minn.1983). The City argues that Cokley failed to prove statutorily-protected conduct and causation between her conduct and elimination of her job. We agree.

I.

Whether an employee made a report in “good faith” is a question of fact, but the court may determine as a matter of law that certain conduct does not constitute a report for purposes of the Whistleblower Act. Rothmeier v. Investment Advisers, Inc., 556 N.W.2d 590, 593 (Minn. App.1996), review denied (Minn. Feb. 26, 1997). Cokley claims that she reported three issues: the City’s employees were claiming overtime not authorized under the Federal Labor Standards Act (FLSA); the City was violating OSHA regulations; and the City’s building inspector should have been classified as an employee rather than an independent contractor. To qualify as a report under the statute, a report must “blow the whistle” by notifying the employer of a violation of law that is a clearly mandated public policy. See Obst v. Microtron, Inc., 614 N.W.2d 196, 200 (Minn.2000) (determining whether plaintiff reported a violation of law); Hedglin v. City of Willmar, 582 N.W.2d 897, 902 (Minn.1998) (finding vague reports of reprehensible conduct, where no statute or rule is violated by such conduct, are not reports); Donahue v. Schwegman, Lundberg, Woessner & Kluth, P.A., 586 N.W.2d 811, 815 (Minn.App.1998) (holding complaint of internal payroll deduction practices did not implicate public policy). As a matter of law, the January 15, 1996 memorandum proposing changes to the personnel policy and the May 3, 1996 memorandum summarizing the sessions Cokley attended at the League of Minnesota Cities Insurance Trust Loss Control Workshop do not meet the requirements of a report under the Act and should not have been submitted to the jury for a determination of good faith. The evidence of Cokley’s conversations with individual councilmembers about her concerns was also insufficient to meet the reporting requirement of the Act.

FLSA concerns

In January 1996, while serving on a subcommittee charged with reviewing the City’s personnel manual, Cokley prepared a memo to the city clerk, who chaired the subcommittee, suggesting changes to the personnel manual to bring practices into compliance with the manual or vice-versa. Cokley had several conversations with councilmember Black about her interpretation of the overtime requirements in the FLSA. Cokley testified that Black agreed with her interpretation but told her to “leave it alone” because there were “bigger problems,” that the “mayor had his head in the sand,” and that “somebody’s going to get hurt.”

The two-page January 1996 memo, prepared in the context of Cokley’s participation on a subcommittee to address changes to the personnel policy manual, contains a single sentence in the middle of a paragraph on the second page:

The City’s personnel policy discusses employees to whom the Federal Fair Labor Standards Act applies, and yet past procedures regarding overtime and compensatory time have not been in conformance with the Act.

As a matter of law, this non-specific reference to past practices not in conformance with the FLSA is insufficient to implicate a current violation of law or public policy. See Donahue, 586 N.W.2d at 813-14 (finding mere mention of a suspected violation amounted to a complaint of acknowledged firm practice and not a report under the statute). The evidence of Cokley’s conversations with councilmember Black about FLSA and the practices of the city clerk and deputy city clerk regarding overtime also took place in the context of Cokley’s participation on the subcommittee addressing revisions to the personnel policy manual. Cokley discussed with Black her opinion that non-exempt employees were receiving benefits not mandated by the FLSA. Cokley testified that she was aware that the FLSA provided a minimum standard and that cities could give greater benefits than provided in the FLSA. There is no evidence that Cokley pursued this issue beyond the discussions that occurred in early 1996 in the context of the subcommittee or that she addressed with councilmember Black or any other council-member a violation of law that implicated public policy. See Hedglin, 582 N.W.2d at 902 (finding vague reports of conduct not in violation of a statute or rule are not a report).

OSHA concerns

Cokley’s involvement in Fiedler’s OSHA concerns consisted of a lunch meeting with Fiedler and Black, during which Fiedler discussed his concerns, and possibly a conversation with Fournier about Fiedler’s concerns. When Cokley became involved the OSHA issues were not new to the city council, because Fiedler had presented these issues to the city council in January or February of 1994. See Rothmeier, 556 N.W.2d at 593 (finding mention of suspected violation already acknowledged by employer not a report); see also Obst, 614 N.W.2d at 203 (finding employer already knew of safety violations).

In her May 3, 1996 memo, titled “League of Minnesota Cities Insurance Trust Loss Control Workshop,” Cokley summarized for the councilmembers the sessions of the workshop Cokley attended, including sessions about OSHA requirements. The memo outlines OSHA requirements as taught at the workshop but does not assert that the City was in violation. In fact, several of the requirements addressed in the memo are not applicable to the City. The memo speaks for itself and is clearly informational: “I have handout information on all of the issues discussed * * *. Should you be interested in copies of this information, please let me know.” See Obst, 614 N.W.2d at 203 (emphasizing good-faith report depends on content of report and purpose in making report). The record contains no evidence that Cokley discussed OSHA issues with anyone after the May 3, 1996 memo was distributed or that she pursued conversations with anyone about Fiedler’s concerns after that date.

Building Inspector classification

Cokley’s concerns about the building inspector first centered on the lack of an insurance certificate, an issue that, she testified, was part of her job description. Based on her reading and experience in other cities, Cokley developed a conviction that the building inspector was mis-classi-fied as an independent contractor and that the position should have been classified as an employee. She discussed this concern with councilmember Black in early 1996. Although Cokley testified that she prepared a memorandum that discussed this concern and suggested in the memorandum that the City needed to address this issue, the memorandum she refers to is the May 1996 summary of workshop sessions she attended. On the fourth page of the memorandum, Cokley stated: “If the [C]ity has a contracted building inspector, the building inspector must have insurance and indemnify the [C]ity.” In bold under the highlights of the workshop section, Cokley wrote:

Require independent contractors to carry insurance indemnifying the [C]ity. They must be careful on advise [sic] and suggestion and not act as a consultant regarding building code regulations.

Cokley’s memo does not alert the council to the concern that Cokley expressed at trial, that the building inspector’s classification was in violation of “independent contractor laws in Minnesota,” PERA requirements, or any other laws or regulations. See Obst, 614 N.W.2d at 200 (stating reported conduct must at least implicate a violation of law). There is no evidence that Cokley pursued this concern beyond her reference to insurance in the May 1996 memo. Neither the memorandum nor the concerns Cokley expressed to Black report a violation of any law or regulation and do not, as a matter of law, qualify as protected activity under the Whistleblower Act.

II.

In addition to failing to prove that she engaged in protected conduct, Cokley has failed to produce any evidence of causation between her alleged conduct and the elimination of her position. We are mindful that retaliatory motive is difficult to prove by direct evidence and that an employee may demonstrate a causal connection by circumstantial evidence that justifies an inference of retaliatory motive. Dietrich v. Canadian Pac. Ltd., 536 N.W.2d 319, 327 (Minn.1995). Speculation, however, is not circumstantial evidence. A fact is proved by circumstantial evidence when its existence can reasonably be inferred from other facts proved in the case. 4 Minnesota Practice, CIVJIG 12.10 (1999). “‘Inferences must * * * be reasonably supported by the available evidence; sheer speculation is not enough.’ ” Illinois Farmers Ins. Co. v. Brekke Fireplace Shoppe, Inc., 495 N.W.2d 216, 221 (Minn.App.1993) (quoting Rochester Wood Specialties, Inc. v. Rions, 286 Minn. 503, 509, 176 N.W.2d 548, 552 (1970)). In this case, Cokley has presented a theory of causation based on conjecture, not premises of fact from which a causal connection can be inferred.

As is clearly demonstrated from the nature of her concerns and the manner in which she addressed them, Cokley did not intend to blow the whistle until after her job was eliminated, at which point she seized on the theory to explain the abrupt, seemingly arbitrary elimination of her job. She pressed this theory upon newly-elected councilmember Mark Berning, who had no knowledge of Cokley’s activities prior to the elimination of her job, other than as related by Cokley. When Berning called Cokley the day after her job was eliminated, Cokley outlined her theory to Berning. Cokley made contemporaneous notes of her own statements during this conversation, which were presented at trial as independent evidence of retaliation for whistle-blowing.

Close proximity between a complaint of discrimination and a termination decision has been held to support an inference of reprisal. See Thompson v. Campbell, 845 F.Supp. 665, 675 (D.Minn.1994) (holding that termination four months after plaintiff filed a complaint, together with other circumstantial evidence in the record, raised an issue of material fact concerning the causal connection between protected conduct and termination); Dietrich, 536 N.W.2d at 327 (stating that a causal connection may be established by the proximity in time between a statutorily protected act and an adverse employment action). At trial, Cokley’s counsel characterized the congratulatory note she wrote to the mayor-elect as “making waves right up to the final days before she gets fired.” In her brief she states that the “evidence confirmed” that she wrote Fournier to “discuss her concern regarding the violation of laws only a few days before she proposed to eliminate her position.” Cok-ley asserts that the proximity of this note to the elimination of her job constitutes evidence of causation. The note speaks for itself. The note does not mention or suggest any violations of law by the City. No evidence links the remarks in this note to Cokley’s concerns about FLSA, OSHA or the building inspector’s classification. As a matter of law, a letter that does not reference any concerns about violations of law is not a whistleblower report protected under the statute, and its proximity to the elimination of Cokley’s job does not constitute relevant evidence of causation to support a whistleblower claim. See Obst, 614 N.W.2d at 200 (holding reported conduct must at least implicate a violation of law).

Cokley argued that evidence that the council held several meetings and subcommittee meetings before deciding to hire her, contrasted with a lack of any discussion prior to approval of the motion to pursue elimination of her position, demonstrates causation. Although this evidence may show that the council acted precipitously, only speculation links the council’s quick decision with the information Cokley had provided many months earlier.

Cokley also argued that the city attorney’s characterization of the decision to eliminate Cokley’s position as a “political decision,” rather than an “economic decision,” (made in a conversation with newly-elected councilmember Berning) is evidence of retaliation by the city council. No evidence supports this assertion. A political decision to eliminate a position is not prohibited by the whistleblower statute, even if the decision has been characterized as an economic decision at the time that it was made. A political decision is not a synonym for retaliation and is not evidence of retaliation. Cokley cannot question the motivation of the city council until she has demonstrated some evidence of causation.

Cokley argues that phone calls by Four-nier and the city attorney to other council-members to line-up support for the motion for reorganization and the city council’s unwillingness to answer questions or submit to cross-examination at the November 19, 1996 meeting about their support for this proposition are further evidence of causation linking elimination of her position to her alleged reports. Cokley suggests that because she impeached the City’s witnesses about the phone calls and because the council was not willing to submit, on November 19th, to cross-examination about their motivation for reorganization, the jury is free to speculate that there was a causal connection between information she had provided in the first six months of 1996 and the reorganization approved after the November 1996 election. Again, Cokley relies on speculation, not evidence.

The district court erred by failing to direct a verdict for the City at the close of Cokley’s evidence, placing the jury in a position of determining whether the reasons for reorganization advanced by the City were “pretext” "without requiring Cokley to make a prima facie case under the Whistleblower Act. Cokley’s counsel adeptly used this error to his advantage, successfully persuading the jury to substitute speculation for evidence. Once the verdict was in, the district court erred by failing to grant judgment notwithstanding the verdict, because Cokley did not engage in protected activity and failed to present evidence beyond speculation to show any causal link between the concerns she had expressed several months earlier with the decision to eliminate her position. Viewing that evidence in the light most favorable to the verdict, judgment for Cokley cannot be sustained on any reasonable theory.

Because the case should not have been submitted to the jury, we do not reach the issues of jury instructions or the enhancement of attorney fees.

DECISION

The district court erred by failing to grant judgment notwithstanding the verdict where Cokley did not engage in protected activity and failed to present evidence beyond speculation to show any causal link between the concerns she expressed and the decision to eliminate her position.

Reversed.

      . Cokley, who responded to the City’s advertisement for a business-finance director, had requested a salary higher than that expected by the City for that position. Because the City wanted to hire Cokley, they added the title of director of economic development to the position to justify the higher salary.

      . Cokley testified that she had reported similar concerns to councilmember Larry Fournier, who was also a member of the subcommittee. Fournier testified that he did not recall any conversations or memos from Cokley regarding the FLSA.


author: RANDALL, Judge

text:
    STATE of Minnesota ex rel. Ellyn QUIRING, Relator, v. BOARD OF EDUCATION OF INDEPENDENT SCHOOL DISTRICT NO. 173, MOUNTAIN LAKE, MINNESOTA, Respondent.
    No. C8-00-1496.
    Court of Appeals of Minnesota.
    March 20, 2001.

      Dale G. Swanson, Forest Lake, MN, (for relator).
    Gloria B. Olsen, Marie C. Skinner, Knut-son, Flynn, Deans & Olsen, P.A., Mendota Heights, MN, (for respondent).
    Considered and decided by RANDALL, Presiding Judge, PETERSON, Judge, and SHUMAKER, Judge.
   OPINION

RANDALL, Judge

The school board placed relator on unrequested leave of absence under Minn.Stat. § 122A.40, subd. 11 (2000) based on the ground that it eliminated her position as principal. Relator contends that the position was not eliminated because other employees now perform her duties. She also argues respondent’s reorganization scheme was arbitrary and capricious and that its ability to reorganize was limited by the teachers’ continuing contract rights. We affirm.

FACTS

Relator Ellyn Quiring was hired as a teacher in 1970 by respondent Board of Education of Independent School District No. 173, Mountain Lake, Minnesota (school board) and has continuing contract rights under Minn.Stat. § 122A.40, subd. 7 (2000). Quiring became a lead teacher in 1991 and an elementary principal in 1997. She was a full-time elementary principal during the 1999-2000 school year.

During the 1999-2000 school year, the district’s administrative staff included a full-time elementary principal (1.0 full-time equivalency (F.T.E.)), a part-time secondary principal (.4 F.T.E.), a part-time superintendent (.6 F.T.E.), and a full-time community education director (1.0 F.T.E.). Quiring was the elementary principal and William Strom, who is a fully licensed superintendent and secondary and elementary principal without continuing contract rights, was the part-time secondary principal and part-time superintendent. K-12 education is located in one building for the school district.

Anticipating a budgetary shortfall of approximately $676,000, declining state revenue, no general fund reserve, and declining enrollment for the 2000-2001 school year, the school board decided to reorganize the administrative staff and discontinue the principal positions and community education director position, leaving only the superintendent position. Strom became the full-time superintendent, which included performing many of the duties previously performed by Quiring, the community education director, and Strom in his former secondary principal position. Other duties, previously performed by Quiring and the secondary principal, are now performed by the licensed school nurse, teachers, a contracted special education director, and an administrative assistant to the superintendent.

The school board proposed to place Quiring on unrequested leave of absence (ULA) on May 31, 2000. Their sole ground for placing Quiring on ULA was because her principal position was eliminated. As a continuing contract teacher, Quiring was then offered a full-time teaching position for the 2000-2001 school year. Quiring requested a hearing, which took place before an independent hearing officer on June 30, 2000.

The hearing officer submitted his proposed findings of fact, conclusions, and recommendation to place Quiring on ULA, which the school board adopted. After receiving notice of the school board’s decision, Quiring petitioned this court for a writ of certiorari.

ISSUE
1. Did the school district properly discontinue Quiring’s principal position?
2. Did the school board subcontract the duties of both principals, thereby terminating Quiring’s bargaining unit without negotiations?
3. Is Minn.Stat. § 122A.40, subd. 11 (2000) the controlling authority for the school board’s reorganization of its administrative structure?

ANALYSIS

A school district acts in an administrative capacity when making personnel decisions. Beste v. Independent Sch. Dist. No: 697, 398 N.W.2d 58, 60 (Minn.App.1986). This court will reverse a school board’s decision to terminate a teacher only if that decision was

fraudulent, arbitrary, unreasonable, not supported by substantial evidence on the record, not within the school board’s jurisdiction or is based on an erroneous theory of law.

Ganyo v. Independent Sch. Dist. No. 832, 311 N.W.2d 497, 500 (Minn.1981) (citations omitted). A court in a school case “is not at liberty to hear the case de novo and substitute its findings for those of the school board.” Kroll v. Independent Sch. Dist. No. 593, 304 N.W.2d 338, 342 (Minn. 1981).

I. Discontinuance of Position

Quiring argues the school board did not actually discontinue the principal positions since the duties performed by Quiring and the secondary principal were reassigned to Superintendent Strom and various people in other positions with less seniority than Quiring. Because the duties of both principals continue to be performed by employees in the district, Quiring asserts this is, at minimum, a partial discontinuance rather than a full discontinuance and she is therefore “entitled to the substantial fractional part of [a principal position] which remains” because of her continuing contract rights.

Teachers’ ULA rights are governed by Minn.Stat. § 122A.40, subd. 11 (2000). A school board has authority to place teachers on ULA because of discontinuance of position, lack of pupils, financial limitations, or merger of classes due to district consolidations. Id. When a teacher’s services are terminated for such reasons, the teacher “must receive first consideration for other positions in the district for which that teacher is qualified.” Minn.Stat. § 122A.41, subd. 14(a) (2000). Further, teachers with continuing contract rights who are placed on ULA must be reinstated to positions for which they are licensed in inverse order of placement on ULA if the position from which they were placed on ULA is not available. Minn.Stat. § 122A.40, subd. 11(e).

Here, the school board complied with all statutory requirements for placing Quiring on ULA. The May 15, 2000, school board minutes show that the board decided to discontinue the elementary and secondary principal positions because of declining enrollment and financial conditions. They then placed Quiring and Strom on ULA for these positions. After placing Quiring on ULA, they reassigned her to a full-time elementary teaching position and placed Strom in a full-time superintendent position for which he is licensed. Quiring could not be reinstated to a principal position that no longer exists. The school board complied with statutory requirements by reinstating Quiring as an elementary teacher, for which she is licensed and is in inverse order of positions from which she was placed on ULA.

Citing State ex rel. Dreyer v. Board of Educ., 344 N.W.2d 411 (Minn.1984), Quiring argues that because the duties of both principals are now assumed by Superintendent Strom as part of his duties, the school board’s actions actually amount to a partial discontinuance of the principal positions. Based on this analysis, Quiring believes that she is entitled to the part-time principal position since she has continuing contract rights, holds a license for the position, and has seniority over Strom. Quiring’s reliance on Dreyer is misplaced.

In Dreyer, the school board reduced a full-time principal position to half time and offered Dreyer either a full-time teacher position or a half-time principal position. Id. at 412. The court determined that the school board’s decision not to hire Dreyer as a half-time principal and half-time teacher must be based on sound educational policy. Id. at 414. In this case, however, Mountain Lake eliminated all principal positions. There is no part-time principal position available for Quiring. We conclude that elimination of a position does not legally require that all of the duties of that position cease to exist.

The school board properly discontinued Quiring’s elementary principal position. Because there is no part-time principal position for Quiring to assume, the school board honored Quiring’s continuing contract rights by reassigning her to a full-time elementary teacher position.

II. Subcontracting and Terminating Bargaining Unit

Quiring argues the school board arbitrarily and capriciously reorganized the district administration under an erroneous theory of law by contracting out the duties of both principal positions, which in turn terminated Quiring’s bargaining unit without negotiations. Quiring claims that the duties of both principal positions were contracted out to various employees because (1) Strom was terminated as secondary principal and hired as full-time superintendent on May 15, 2000; and (2) the former unlicensed K-12 counselor was rehired as administrative assistant to the superintendent about two-and-a-half weeks after Quiring’s hearing and a month before the final decision to place Quiring on ULA. Essentially, due to the timing of these actions, Quiring asserts the school board arbitrarily and capriciously avoided giving her bargaining unit notice to negotiate a result when they contracted out the duties of both principal positions.

Generally, failure to raise an issue in an administrative proceeding precludes review on appeal. REM-Canby, Inc. v. Minnesota Dept. of Human Servs., 494 N.W.2d 71, 76 (Minn.App.1992), review denied (Minn. Feb. 25, 1993). Quiring makes no reference to the record regarding these issues being raised below nor does she cite any law supporting her belief that she is entitled to raise these issues. In addition, after the hearing officer issued his findings of fact and conclusions of law on the record, Quiring failed to object or otherwise clarify the hearing officer’s perception of the issue. See id. (stating objections required while agency has opportunity to correct). Quiring did not adequately raise the issue, and therefore it is waived on appeal. Had Quiring raised this issue below, however, her argument would fail on its merits.

Statutorily, a principal position is discretionary, whereas a superintendent position is mandatory. See Minn.Stat. § 123B.147, subd. 1 (2000) (stating each public school building may be supervised by principal); see also Minn.Stat. § 123B .143, subd. 1 (2000) (stating all districts with classified secondary school must have superintendent). A principal position is under the supervision of the superintendent. Minn.Stat. § 123B.147, subd. 3. Further, the superintendent’s duties include those prescribed by the board, in addition to the regular superintendent duties outlined in Minn.Stat. § 123B.143, subd. 1. Based on these statutes, school boards retain discretion in assigning duties to the superintendent; therefore, this school board can assign any of Quiring’s former principal duties to Superintendent Strom.

In Foley Educ. Assoc. v. Independent Sch. Dist. No. 51, 353 N.W.2d 917 (Minn.1984), the school board placed licensed teachers who supervised study halls on ULA and assigned non-licensed employees as study-hall supervisors without negotiating with the teachers’ bargaining unit. Foley differs from this case in that the Mountain Lake principal positions were eliminated, rather than reassigned like the study-hall positions in Foley. Foley states that contracting out is not an inherent managerial decision, which is therefore subject to collective bargaining. Id. at 923. This case, however, is not a situation of contracting out, but rather the school board reorganizing the organizational structure, which is a matter of inherent managerial policy, therefore not requiring negotiation. Minn.Stat. § 179A.07, subd. 1 (2000). Quiring’s bargaining unit was not arbitrarily and capriciously exterminated under an erroneous theory of law.

III. Controlling Authority on Reorganization of Administrative Structure

Quiring argues that because this case involves a continuing contract employee, the school board's discretion to reorganize the administrative structure by reducing the workforce is strictly limited and controlled by the provisions of Minn.Stat. § 122A.40, subd. 11 rather than Public Employment Labor Relations Act (PEL-RA), Minn.Stat. § 179A (2000).

While the school board does have discretion to reorganize the administrative structure of the school district under the PELRA, it must consider the continuing contract rights of the individuals in the process of a ULA. See Minn.Stat. § 122A.40, subd. 11(h) (stating ULA “must not impair the continuing contract rights of a teacher”).

PELRA states:

A public employer is not required to meet and negotiate on matters of inherent managerial policy. Matters of inherent managerial policy include, but are not limited to, such areas of discretion or policy as the functions and programs of the employer, its overall budget, utilization of technology, the organizational structure, selection of personnel, and direction and the number of personnel. No public employer shall sign an agreement which limits its right to select persons to serve as supervisory employees or state managers under section 43A.18, subdivision 3, or requires the use of seniority in their selection.

Minn.Stat. § 179A.07, subd. 1 (2000) (emphasis added). Quiring’s employment contract with the district restates this PEL-RA provision. It also states that the “School Board has the obligation and the right to efficiently manage and conduct the operation of the School District within its legal limitations.” Reorganizing the administrative structure by discontinuing the statutorily discretionary principal positions, because of budgetary restrictions and declining enrollment, falls within the statutory and contractual rights of the school board.

The school board honored the continuing contract rights of Quiring in the process of the reorganization. Under Minn.Stat. § 122A.40, subd. 11(b), continuing contract teachers are to be placed on ULA “in fields in which they are licensed in the inverse order in which they were employed.” Not having another principal position for Quiring to have and Quiring not being licensed as a superintendent, the school district placed Quiring in a full-time elementary teaching position, which complied with the statutory requirements of her continuing contract rights.

Relying on Klein v. Board of Educ., Quiring argues the school board cannot allow Superintendent Strom, a junior employee, to bump Quiring from her job. Klein v. Board of Educ., 497 N.W.2d 620 (Minn.App.1993), review granted (Minn. May 18, 1993) and appeal dismissed (Minn. Jul. 28,1993). In 1992, Klein’s principal position was statutorily mandated. See Minn.Stat. § 123.34, subd. 10 (1992) (stating “[e]ach public school building * * * in an independent school district shall be under the supervision of a principal”) (emphasis added). A junior employee who was hired to be half-time principal and half-time superintendent bumped Klein from his principal position. Klein, 497 N.W.2d at 622. Quiring’s reliance on Klein is misplaced because the statute in effect at the time of Quiring’s placement on ULA provides that principal positions are not statutorily mandated. See Minn. State § 123B.147, subd. 1 (stating “[ejach public school building * * * in an independent district may be under supervision of a principal”) (emphasis added). Further, there was no part-time principal position for Quiring to occupy. Strom did not bump Quiring from the principal position since he is the superintendent.

The school board’s discretion to reorganize the administrative structure by eliminating both principal positions was handled properly under PELRA and MinmStat. § 122A.40, subd. 11.

DECISION

Considering the district’s financial situation, the school board’s decision .to discontinue Quiring’s principal position, place her on ULA, and reassign her to a full-time teaching position was not arbitrary or unreasonable and was not based on an erroneous theory of law.

Affirmed.

      . Minn.Stat. § 123B.147, subd. 1 was previously numbered § 123.34, subd. 10.


author: TOUSSAINT, Chief Judge

text:
    In the Matter of the WELFARE of J.B., Jr., Child.
    No. C5-00-2203.
    Court of Appeals of Minnesota.
    March 27, 2001.

      Mark Stephen Stolpman, Fergus Falls (for appellant).
    Mike Hatch, Attorney General, St. Paul, MN; and Kurt Alan Mortenson, Assistant Otter Tail County Attorney, Fergus Falls (for respondent).
    Considered and decided by TOUSSAINT, Presiding Judge, SCHUMACHER, Judge, and STONEBURNER, Judge.
   SPECIAL TERM OPINION

TOUSSAINT, Chief Judge

The father of J.B., Jr. appeals a November 20, 2000 order terminating his parental rights. The appeal papers were served and filed by mail on December 19. Appellant filed an affidavit of service on counsel for respondent Ottertail County (county), but the appeal papers did not indicate whether the guardian ad litem or counsel for J.B., Jr. had been served. This court questioned whether appellant served the notice of appeal on the guardian ad litem and counsel for J.B., Jr. within the appeal period, and, if not, whether dismissal of the appeal is required. Appellant and the county submitted memoranda.

DECISION

Unless a different time is provided by statute, an appeal may be taken from an appealable order within 60 days after service by any party of written notice of its filing. Minn. R. Civ.App. P. 104.01, subd. 1. The statute governing juvenile protection matters provides a different appeal time. Appeals from final orders in juvenile protection matters must “be taken within 30 days of the filing of the appeal-able order.” Minn.Stat. § 260C.415, subd. 1 (2000). This court lacks jurisdiction to consider an untimely appeal from a final order in termination proceedings, and must dismiss. Minn. R. Civ.App. P. 126.02; In re Welfare of D.B., 463 N.W.2d 301, 302 (Minn.App.1990).

The rule governing appeals in juvenile protection matters provides in part that:

Within the time allowed for an appeal from an appealable order, the person appealing shall:
(a) serve a notice of appeal upon the county attorney and all parties or their counsel if represented; and
(b) file a notice of appeal, together with proof of service upon all parties, with the clerk of the appellate courts and the court administrator.

Minn. R. Juv. P. 82.02, subd. 3 (emphasis added).

By contrast, the civil appellate rule states that an appeal is made

by filing a notice of appeal with the clerk of the appellate courts and serving the notice on the adverse party or parties within the appeal period.

Minn. R. CivApp. P. 103.01, subd. 1 (emphasis added).

An appeal in a juvenile protection matter is taken to the court of appeals as in civil cases. Minn.Stat. § 260C.415, subds. 1, 2 (2000). Therefore, Minn. R. Civ.App. P. 103.01, subd. 1, rather than Minn. R. Juv. P. 82.02, subd. 3 governs the acts required to invoke appellate jurisdiction. See Minn. R. Civ.App. P. 101.01 (providing that the civil appellate rules govern procedure in civil appeals); In re Jost, 449 N.W.2d 719, 721 (Minn.1990) (holding that language in commitment statute stating that appeal is taken as in other civil cases shows legislative determination to create no distinction between procedural remedies available to all civil litigants and those authorized for persons participating in commitment proceedings). Under Minn. R. Civ.App. P. 103.01, subd. 1, timely filing of the notice of appeal with the clerk of the appellate courts and timely service on the adverse party or parties are the jurisdictional steps required to initiate an appeal. Minn. R. Civ.App. P. 103.01 1998 advisory comm. cmt.

The child’s guardian ad litem is a party to a juvenile protection matter. Minn. R. Juv. P. 57.01, subd. 1(a). Any other person, including a child, may be designated as a party if that person is deemed by the court to be important to a resolution that is in the best interests of the child. Id., subd. 1(f).

Here, the guardian ad litem for J.B., Jr. is a party. J.B., Jr. is also a party because the trial court appointed counsel for him and he was allowed to participate as a party. See State v. Tri-State Tele. & Telegraphic Co., 146 Minn. 247, 251, 178 N.W. 603, 604 (1920) (defining the term “parties” as including those who are directly interested in the subjects matter and who have the right to control the proceedings, examine and cross-examine the witnesses, and appeal from the order or judgment finally entered).

Appellant did not serve the notice of appeal on either the guardian ad litem or J.B., Jr. within the appeal period. Appellant’s failure to do so is a jurisdictional defect if either of these parties is “adverse” to the appeal. See Hansing v. McGroarty, 433 N.W.2d 441, 442 (Minn. App.1988) (holding that timely service of the notice of appeal upon adverse parties is jurisdictional), review denied (Minn. Jan. 25,1989).

An “adverse party” is “[a]ny party who would be prejudiced by a reversal or modification of an order, award, or judgment * * *.” Larson v. LeMere, 220 Minn. 25, 27 28,18 N.W.2d 696, 698 (1945). Neither J.B., Jr. nor the guardian is an adverse party to this appeal. J.B., Jr.’s counsel argued against termination of appellant’s parental rights. The guardian opposed termination of parental rights in favor of long-term foster care. Appellant provided affidavits from the guardian and counsel for J.B., Jr. stating that they are not adverse to this appeal.

Appellant timely filed the notice of appeal and served it on the only adverse party, the county. Appellant’s failure to serve the guardian ad litem and counsel for J.B., Jr. within the appeal period does not deprive this court of jurisdiction because the guardian and J.B., Jr. are not adverse to the appeal.

Appeal to proceed.