author: ANDERSON, RUSSELL A., Justice.

text:
    Darold ZWIEG (deceased), Respondent, v. POPE DOUGLAS SOLID WASTE and Minnesota Counties Insurance Trust, Relators, and Medicare/Noridian, Blue Cross/Blue Shield of Minnesota, St. William’s Living Center, Center for Diagnostic Imaging, Alexandria Clinic, and Regional Diagnostic Radiology, Intervenors.
    No. A05-799.
    Supreme Court of Minnesota.
    Oct. 13, 2005.

      Luke M. Seifert, Krista Laurich Durr-wachter, Quinlivan & Hughes, P.A., St. Cloud, MN, for Relator.
    Raymond R. Peterson, McCoy, Peterson & Jorstad, Ltd., Minneapolis, MN, for Respondent.
   OPINION

ANDERSON, RUSSELL A., Justice.

This workers’ compensation matter comes before us by certiorari upon the relation of Pope Douglas Solid Waste and Minnesota Counties Insurance Trust to review a decision of the Workers’ Compensation Court of Appeals (WCCA) reversing, by 3-2 decision, a denial of additional compensation as a penalty for delayed payment of wage loss benefits. We affirm.

Darold Zwieg worked for Pope Douglas Solid Waste as a household hazardous waste technician. His work involved receiving and sorting household hazardous waste, maintaining storage drums and containers and general maintenance work at the collection facility. On February 11, 2002, Zwieg sustained a compensable right inguinal hernia injury for which he underwent surgery on February 20, 2002. He returned to work on April 2, 2002. The employer and its workers’ compensation liability insurer, Minnesota Counties Insurance Trust, accepted liability and paid temporary total disability benefits and medical expenses.

On July 12, 2002, the employee was hospitalized for abdominal pain, eventually identified as an incarcerated right inguinal hernia with a segmental small bowel obstruction which was surgically repaired on July 15, 2002. The employee lived alone and had no one to care for him on a daily basis. Consequently, he recuperated in a nursing home. He was discharged to his own home on September 18, 2002. Because the medical bills “were stacking up,” the employee’s nephew, Gary Zwieg, acting on behalf of his uncle, inquired about workers’ compensation benefits. The employer and insurer told Gary Zwieg that they did not believe the second surgery was related to the work injury and first surgery.

The employee filed a claim petition on May 20, 2003, seeking temporary total disability benefits, medical expenses related to the. second surgery and penalties for delayed benefits. The employer and insurer denied the claim and, after obtaining an extension, scheduled an independent medical examination (IME) for November 5, 2003. The examination was postponed due to the employee’s illness. On November 23, 2003, the employee passed away from causes unrelated to his employment. Gary Zwieg was appointed personal representative of the employee’s estate.

The employer and insurer forwarded copies of the employee’s medical records related to his hernia surgeries to Dr. Nolan Segal. By report issued on May 20, 2004, Dr. Segal stated that the second hernia was causally related to the first hernia and repair. The doctor said that had the employee “not sustained the first hernia and subsequent repair, which failed, he would not have developed the second hernia.”

The employee’s claim came on for hearing before Compensation Judge Catherine A. Dallner on June 11, 2004. At the hearing, the employer and insurer stipulated that the employee was entitled to temporary total disability benefits from February 12, 2002, through September 26, 2002, and related medical expenses. The claim for wage loss benefits from September 27, 2002, through November 23, 2003, and penalties for delayed benefits was still in dispute. Any benefits awarded were to go to the employee’s estate.

The compensation judge denied the claim for wage loss benefits after September 26, 2002; awarded a portion of the claimed medical expenses; and awarded partial reimbursement of attorney fees. The compensation judge denied the claim for penalties for delayed payment of temporary total disability benefits from July 12, 2002, through September 26, 2002, where the employer and insurer did not have expert medical opinion on causation until the IME report from Dr. Segal was issued on May 20, 2004.

On appeal, the WCCA reversed the denial of penalties and remanded for further proceedings. Zwieg v. Pope Douglas Solid Waste, 2005 WL 890829, at *4 (Minn. WCCA, Mar. 28, 2005). The WCCA agreed that penalties were not payable for delayed benefits prior to the IME report; but by majority decision, the WCCA concluded that after receipt of the IME report, the employer and insurer were obligated to commence payment of benefits within 14 days, as required by Minn.Stat. § 176.221, subd. 1 (2004), or file for an extension. That the employer and insurer neither sought an extension nor commenced payment until sometime after August 17, 2004, the date of the compensation judge’s decision, was grounds for an additional award of compensation as a penalty. The dissent concluded that the claim for penalties did not survive the employee’s death. The employer and insurer have sought certiorari review under Minn.Stat. § 176.471 (2004).

I.

It is the intent of the legislature that the Workers’ Compensation Act be construed so as to assure the quick and efficient delivery of benefits to injured workers. Minn.Stat. § 176.001 (2004). Prior to 1995, additional awards of compensation as penalties for delayed compensation were discretionary. Minn.Stat. § 176.225 (1994). The 1995 legislative revisions made the penalties mandatory and increased the amount of allowable penalties from 25 percent to 30 percent of the unpaid compensation. Act of May 25, 1995, ch. 231, art. 2, §§ 87, 88, 1995 Minn. Laws 1977, 2062 (codified at Minn.Stat. § 176.225 (2004)).

For unreasonably or vexatiously delayed payments, in addition to the total amount of the compensation awarded, the compensation judge shall award a percentage of the unpaid compensation, in an amount up to 30 percent. Minn.Stat. § 176.225, subd. 1. For inexcusable delay, in addition to the compensation awarded, the compensation judge shall award a percentage of the unpaid compensation, in an amount up to 25 percent. Minn.Stat. § 176.225, subd. 5. Here, the WCCA reversed the denial of penalties for the delayed payments after June 7, 2004, which was 14 days after the employer’s and insurer’s receipt of the IME report.

II.

The employer and insurer assert that a deceased employee’s heirs are not entitled to penalties as a matter of law. Accrued but unpaid installments of compensation are an asset of the decedent’s estate like any other debt. 4 Arthur Larson and Lex K Larson, Larson’s Workers’ Compensation § 89.02 (2005). But in the absence of legislation to the contrary, an award of unaccrued compensation abates. Id. § 89.03. The rights of dependents or heirs are separate inchoate rights which become effective upon the death of the employee and are thus governed by the laws in effect on that date. Borchardt v. Biddick, 306 N.W.2d 817, 818 (Minn.1981).

General Statutes 1923 § 4274(f), as amended in 1925 and subsequently codified as Minn.Stat. § 176.11(f) (1941), provided that where an employee died from a work-related injury while receiving compensation, “all payments previously made as compensation for such injury shall be deducted from the compensation, if any, due on account of the death.” The same subdivision further provided: “ ‘accrued compensation due to the deceased prior to his death but not paid, shall be payable to such dependent persons or legal heirs as the industrial commission may order without probate administration.’ ” Fehland v. City of St. Paul, 215 Minn. 94, 102, 9 N.W.2d 349, 354 (1943) (quoting statute).

In 1975, the legislature repealed those provisions which allowed for the reduction of death benefits by compensation already paid. Act of June 4, 1975, ch. 359, § 8, 1975 Minn. Laws 1168, 1180. The result was the repeal of Minn.Stat. § 176.101, subd. 6 (the successor provision to Minn. Stat. § 176.11(f) (1941)) in its entirety; and this court held that because of the repeal, those entitled to death benefits (because the employee died from a work-related injury) were no longer entitled to any unpaid accrued workers’ compensation. Lakics v. Lane Bryant Dep’t Store, 263 N.W.2d 608, 610 (Minn.1978).

With regard to cases not involving death benefits (because the employee died from causes unrelated to the work injury), this court held that the right of an injured employee to permanent partial disability under Minn.Stat. § 176.021, subd. 3 (1976), was personal and terminated at the time of death whether the benefits were accrued or unaccrued. Umbreit v. Quality Tool, Inc., 302 Minn. 376, 380-81, 225 N.W.2d 10, 13-14 (1975) (reaffirming Tierney v. Tierney & Co., 176 Minn. 464, 467, 223 N.W. 773, 775 (1929)). Death did not, however, extinguish an unpaid award of compensation made to the employee during his lifetime. E.g., Knoble v. Storer Realty Co., 255 N.W.2d 388, 392-94 (Minn.1977) (holding that widow was entitled to recover unpaid award of specified amount where it was made prior to death).

Apparently in response to the Tier-ney/Umbreit line of cases, the legislature amended Minn.Stat. § 176.021, subd. 3, so as to provide for the vesting of permanent partial disability compensation in the employee, his dependents or legal heirs, when death was unrelated to the work injury. Act of May 27, 1977, ch. 342, § 4, 1977 Minn. Laws 697, 700. A 1979 amendment added wage loss payments (temporary total, temporary partial, and permanent total disability) to the provision and deleted the qualifying language precluding an award of permanent partial disability benefits to an employee’s dependent when the employee’s death was compensable. Act of June 7, 1979, ch. 3, § 30, 1979 Minn. Laws Ex. Sess. 1256,1271-72.

The statutory provision currently in effect, and also in effect at the time of the employee Zwieg’s death, reads in relevant part as follows:

The right to receive temporary total, temporary partial, or permanent total disability payments vests in the injured employee or the employee’s dependents under this chapter or, if none, in the employee’s legal heirs at the time the disability can be ascertained and the right is not abrogated by the employee’s death prior to the making of the payment.

Minn.Stat. § 176.021, subd. 3 (2004).

In McDowell v. Parsons Electric Co., 62 Minn. Workers’ Comp. Dec. 434 (WCCA 2002), the WCCA concluded that an employee’s heirs had “no basis or standing to claim penalties for delayed payment of permanent partial disability benefits.” Id. at 443. This was so, the McDowell court reasoned, because Minn.Stat. § 176.021, subd. 3, did not specifically reference penalties. Id. at 442. In the matter currently before us, the WCCA upon “further reflection” and by majority decision concluded that penalties for delayed benefits were part of the employee’s underlying claim and were therefore vested and payable to the employee’s heirs. Zweig, 2005 WL 890829, at *5. The WCCA rejected the dissenting member’s position that a penalty claim was separate and independent of the employee’s claim and one that could not be maintained in the absence of statutory authorization:

A claim for penalties is not a separate claim but is part of and grows out of the underlying claim for benefits. The right of the heirs to maintain a claim for temporary total disability benefits carries with it a right to maintain a claim for penalties when, as here, the employer and insurer fail to comply with the statute in the payment of temporary total disability benefits.
The purpose of Minn.Stat. § 176.225, subd. 1, is to facilitate the prompt and expedient resolution of disputes and payment of claims. This is good policy whether the claim is one asserted by the employee or his heirs or dependents. The efficient administration of the workers’ compensation system is best served by holding an employer and insurer to the standards of Minn.Stat. § 176.225 in all cases. For these reasons and policy considerations, the court overrules its decision in McDowell.

Id.

In reliance on the Tiemey/Umbreit line of cases, the WCCA dissent argued that the employee’s claim for penalties terminated upon death and that there was no statutory authority allowing the heirs a claim for conduct that occurred after the employee’s death:

The statute does not, however, address the survival of an employee’s claim for penalties. Given the statutory and case law history on the issue, I find no grounds to confer upon heirs and dependents the right to benefits not expressly authorized by the legislature. Perhaps more importantly, even if the statute might be read to imply the survivability of an employee’s penalty claim — and this is doubtful — the conduct giving rise to the penalty claim that is the subject of the majority’s remand took place about six months after the employee’s death. Thus, what the majority is saying is that heirs and dependents have a totally independent right to seek penalties, even if the employee did not do so or could not have done so. There is simply no legal basis for such a claim under the statute, regardless of the question of survivability.

Id. at *6 (Pederson, J., dissenting).

That the WCCA divided on the issue demonstrates that reasonable minds can come to differing conclusions. Nevertheless, the penalty for delay in payment of compensation is applied in the form of a percentage addition to the employee’s award. Where the penalty is computed as a percentage of the unpaid compensation, we agree with the WCCA majority and hold that penalties for delayed benefits are part of the employee’s underlying claim and are therefore vested and payable to the employee’s heirs. If we misperceive the intent of the legislature, our misper-ception is subject to legislative re-examination. We must take the statute as we find it and give it a construction consistent with its purpose of requiring the prompt payment of undisputed benefits without the necessity of litigation.

III.

The employer and insurer also assert that the WCCA exceeded its scope of review in reversing the denial of penalties. When the WCCA reviews a compensation judge’s findings of fact, it will affirm those findings unless they are “clearly erroneous and unsupported by substantial evidence in view of the entire record as submitted.” Minn.Stat. § 176.421, subd. 1(3) (2004); see also Hengemuhle v. Long Frame Jaycees, 358 N.W.2d 54, 61 (Minn.1984). An award of penalties under Minn. Stat. § 176.225 is generally a factual question for the compensation judge. Maxfield v. Stremel, 1999 WL 60092, at *5 (Minn. WCCA. Jan. 6, 1999). However, the WCCA has the authority to award a penalty as long as the adverse party has been given reasonable notice and an opportunity to be heard. Olson v. Midwest Printing Co., 347 N.W.2d 43, 47 (Minn.1984). The compensation judge in this case denied the claim for penalties for delayed payment of temporary total disability benefits from July 12, 2002, through September 26, 2002, because the employer and insurer did not have expert medical opinion on causation until May 20, 2004, when the IME report from Dr. Segal was issued. The WCCA agreed but concluded that penalties were warranted for the delay after that date.

Temporary total disability benefits shall be paid “within 14 days of notice to or knowledge by the employer” of a compen-sable injury. Minn.Stat. § 176.221, subd. 1. If the injured employee has suffered “a new period of temporary total disability which is caused by an old” compensable injury, temporary total disability benefits shall also commence within 14 days of notice of the new period of disability. Id. In the latter situation, the employer may file for a 30-day extension in which to investigate the propriety of reinstating benefits. Id. Here, the WCCA concluded that where (1) the employer and insurer had notice that the new period of disability was caused by the old compensable injury by way of the IME report of May 20, 2004, (2) stipulated at the June 11, 2004 compensation hearing that the claimed benefits were payable but (3) did not pay those benefits until after the compensation judge’s August 17, 2004 decision, a penalty was “owed for the delay in payment after June 7, 2004.” Zvneg, 2005 WL 890829, at *4. The WCCA remanded the matter for determination of the amount of the penalty-

The employer and insurer argue that the WCCA exceeded its authority in substituting its own factual findings for those of the compensation judge, but the compensation judge did not consider the delay in payment after the May 20, 2004, IME report. The employer and insurer argue that as a matter of policy, penalties should not be available for failure to pay benefits within 14 days of an IME because an employer may have valid defenses to payment. However, the statute allows for the employer to file for an extension of time in which to investigate and assert those defenses; and that did not occur in this case. Accordingly, we conclude that the WCCA did not exceed its authority in reversing the denial of penalties and remanding for further proceedings.

Affirmed.

Employee is awarded $1,200 in attorney fees.

      . "For injury producing temporary total disability, the compensation is 66-2/3 percent of the weekly wage at the time of injury.” Minn.Stat. § 176.101, subd. 1(a) (2004).

      . By statute, an employer is obligated to furnish any medical care that is reasonably required to cure and relieve an injured worker from the effects of a work injury. Minn.Stat. § 176.135, subd. 1 (2004).

      .The filing of a claim petition triggers a 120-day requirement for completing IMEs and filing the IME report. Minn.Stat. § 176.155, subd. 1 (2004). An extension of time for completing the IME and filing the report will be granted upon good cause shown. Id.

      . The compensation judge noted that Dr. Se-gal's report was dated May 12, 2004; but as the WCCA pointed out, the report is date-stamped as having been "issued” on May 20 and the copy received by counsel for the employer and insurer is date-stamped as having been received on May 24, 2004.

      . Minnesota Statutes § 176.225 (2004) provides:
      Subd. 1. Upon reasonable notice and hearing or opportunity to be heard, the commissioner, a compensation judge, or upon appeal, the court of appeals or the Supreme Court shall award compensation, in addition to the total amount of compensation award, of up to 30 percent of that total amount where an employer or insurer has:
      (a) instituted a proceeding or interposed a defense which does not present a real controversy but which is frivolous or for the purpose of delay; or,

        (b) unreasonably or vexatiously delayed payment; or
      (c) neglected or refused to pay compensation; or
      (d) intentionally underpaid compensation; or
      (e) frivolously denied a claim; or
      (f) unreasonably or vexatiously discontinued compensation in violation of sections 176.238 and 176.239.
      For the purpose of this section, "frivolously” means without a good faith investigation of the facts or on a basis that is clearly contrary to fact or law.
      Subd. 2. To determine whether an employer or insurer is liable for the payment provided by subdivision 1, the division, a compensation judge, or the Workers’ Compensation Court of Appeals upon appeal may examine the books and records of the employer or insurer relating to the payment of compensation, and may require the employer or insurer to furnish any other information relating to the payment of compensation.
      The right of the division to review the records of an employer or insurer includes the right of the special compensation fund to examine records for the proper administration of section 176.129, Minnesota Statutes 1990, section 176.131, Minnesota Statutes 1994, section 176.132, and sections 176.181 and 176.183. The special compensation fund may not review the records of the employer or insurer relating to a claim under Minnesota Statutes 1990, section 176.131, until the special compensation fund has accepted liability under that section or a final determination of liability under that section has been made. The special compensation fund may withhold reimbursement to the employer or insurer under Minnesota Statutes 1990, section 176.131, or Minnesota Statutes 1994, section 176.132, if the employer or insurer denies access to records requested for the proper administration of section 176.129, Minnesota Statutes 1990, section 176.131, Minnesota Statutes 1994, section 176.132, section 176.181 or 176.183.
      Subd. 3. If an insurer persists in an action or omission listed in subdivision 1, or does not permit the examination of books and records, or fails to furnish information as required, the commissioner or the chief administrative law judge shall file a written complaint with the commissioner of commerce. The complaint shall specify the facts and recommend the revocation of the license of the insurer to do business in this state. The Workers’ Compensation Court of Appeals may also file a written complaint.
      Subd. 4. Upon receipt of a complaint filed under subdivision 3, the commissioner of commerce shall hear and determine the matter in the manner provided by chapter 14. On finding that a charge made by the complaint is true, the commissioner of commerce may suspend or revoke the license of the insurer to do business in this state. The insurer may appeal from the action of the commissioner revoking the license in the manner provided in chapter 14.
      Subd. 5. Where the employer is guilty of inexcusable delay in making payments, the payments which are found to be delayed shall be increased by 25 percent. Withholding amounts unquestionably due because the injured employee refuses to execute a release of the employee’s right to claim further benefits will be regarded as inexcusable delay in the making of compensation payments. If any sum ordered by the department to be paid is not paid when due, and no appeal of the order is made, the sum shall bear interest at the rate of 12 percent per annum. Any penalties paid pursuant to this section shall not be considered as a loss or expense item for purposes of a petition for a rate increase made pursuant to chapter 79.

      . Act of April 8, 1925, ch. 161, § 2, 1925 Minn. Laws 150-51.

      . Minnesota Statutes § 176.101, subd. 6 (1974), authorized the distribution of benefits to dependents or heirs as follows:
      In case a worker sustains an injury arising out of and in the course of employment, and during the period of disability caused thereby death results proximately therefrom, all payments for temporary or permanent disability previously made as compensation for such injury are deducted up to a maximum of $17,500 from any compensation due on account of the death, and accrued compensation due to the deceased prior to his death but not paid is payable to such dependent persons or legal heirs as the commissioner of labor and industry, compensation judge, or commission in cases upon appeal may order, without probate administration.

      . In most instances, penalties assessed against employers or insurers are paid to the appropriate unit of the state. See Minn.Stat. § 176.221 (2004). "These penalties generally represent a fine for violations of technical requirements. In a limited number of instances, however, the penalties are payable directly to the employee as punishment for prohibited conduct.” The Minnesota Workers' Compensation Deskbook § 11.1, at 11-1 (Jay T. Hartman & Thomas D. Mottaz eds., 3d ed., 2001).


source: Caselaw Access Project

author: ANDERSON, PAUL H„ Justice.

license: Public Domain

text:
    George JANSSEN, et al., Respondents, v. BEST & FLANAGAN, LLP, et al., Appellants.
    No. A03-1893.
    Supreme Court of Minnesota.
    Oct. 13, 2005.

      Bassford Remele, P.A., Lewis A. Re-mele, Jr., Charles E. Lundberg, Minneapolis, for appellant.
    Mavity & Associates, William J. Mavity, Red Wing, for respondent.
   OPINION

ANDERSON, PAUL H„ Justice.

Appellants, the Minneapolis law firm of Best & Flanagan and two of its attorneys (Best & Flanagan), appeal from a Minnesota Court of Appeals decision that a district court order denying their motion to dismiss on remand was not based on jurisdictional grounds and therefore was not immediately appealable. Best & Flanagan claims that the district court lost jurisdiction over it when the court entered judgment dismissing the claims of respondents, George Janssen, et al. (Janssen), against all defendants, and Janssen failed to include Best & Flanagan as a party to the appeal from that judgment. We reverse the court of appeals’ decision.

The facts concerning Janssen’s shareholder’s derivative canse of action on behalf of the Minneapolis Police Relief Association (MPRA) against Best & Flanagan are fully set forth in our earlier opinion in Janssen v. Best & Flanagan, 662 N.W.2d 876 (Minn.2003) (Janssen I). Therefore, we will only reiterate the facts pertinent to the resolution of the issues raised in this appeal.

In May 2000, Janssen commenced a shareholder’s derivative action on behalf of MPRA against Best & Flanagan for legal malpractice, alleging that Best & Flanagan, as counsel for the MPRA, failed to conduct a “due diligence” inquiry into one of MPRA’s investments. Janssen also named the MPRA Board as a defendant and MPRA as a “nominal defendant.” Janssen made a demand on MPRA that it join in the action against Best & Flanagan after commencement of the action and defendants’ threat to move to dismiss if demand was not made in compliance with the requirements for maintaining a derivative action under Minn. R. Civ. P. 23.06. After Janssen’s demand, MPRA appointed attorney Robert Murnane as independent Special Counsel to act as a Special Litigation Committee (SLC) to review the cause of action.

After completing his first review of the cause of action, Murnane recommended against pursuing the legal malpractice claim. The MPRA decided to follow Mur-nane’s recommendation and brought a motion to dismiss Janssen’s shareholder’s derivative action, arguing that the district court should defer to the MPRA’s decision under the business judgment rule. Best & Flanagan submitted a separate motion to dismiss, arguing that Janssen’s action was legally deficient because Best & Flanagan had no attorney-client relationship with Janssen and other MPRA members who were plaintiffs. Best & Flanagan alternatively based its motion on the business judgment rule argument made by the MPRA.

The district court heard both motions. On November 20, 2000, the court issued an order deferring any decision on “defendants’ motion to dismiss.” In a memorandum accompanying its order, the court concluded that Best & Flanagan’s motion to dismiss based on the lack of an attorney-client relationship with the plaintiffs was moot, explaining:

The lawyer defendants have moved to dismiss because they had no attorney-client relationship with the plaintiffs. However, the plaintiffs have made clear that their action is brought solely on behalf of the MPRA, which all parties agree did have an attorney-client relationship with the lawyer defendants. Accordingly, the lawyer defendants’ motion is moot, and the court has considered only the arguments raised by the MPRA.

As the court indicated, it substantively addressed only the business judgment rule issue raised by MPRA. The court found deficiencies in Murnane’s review that prevented it from concluding that the good faith and independence standards of the business judgment rule were satisfied, but noted that it was possible those deficiencies could be easily remedied. Accordingly, rather than denying MPRA’s motion, the court gave MPRA and Murnane an opportunity to remedy the defects of the first review.

After MPRA received the district court’s order, it allowed Murnane considerably more latitude in conducting a second review. Following his second review, Mur-nane again recommended against pursuing the legal malpractice claim, and MPRA again decided to follow his recommendation.

This decision led ■ MPRA and Best & Flanagan to renew their motions to dismiss. The district court heard the renewed motions and permitted all parties, including both MPRA and Best & Flanagan to make oral argument and submit memoranda. Again, the court only addressed the substance of MPRA’s business judgment rule argument, but this time it concluded that Murnane’s review was independent and conducted in good faith. Applying the business judgment rule, the court then deferred to MPRA’s decision to adopt Murnane’s recommendation not to pursue the malpractice claims and issued an order on October 15, 2001 granting “Defendants’ Motion to Dismiss.” In its order and accompanying memorandum, the court did not refer to the defendants separately by name, or otherwise differentiate between the defendants or their motions. The court concluded in its memorandum:

Based on the recommendation of its special litigation committee, the MPRA board has declined to sue its lawyers. Because that committee was independent and acted in good faith, this court has no authority to reverse the MPRA’s decision. Plaintiffs’ Complaint must be dismissed.

(Emphasis added.) On October 22, 2001, judgment was entered adjudging that “Defendants’ Motion to Dismiss is granted,” and incorporating the memorandum that accompanied the court’s order.

Janssen appealed. Janssen did not serve Best & Flanagan with the notice of appeal. Nor did Janssen list Best & Flanagan as a respondent to the appeal or Best & Flanagan’s counsel as attorneys on the appeal in any documents relating to the appeal.

The court of appeals reversed the district court’s dismissal and remanded for trial. Janssen v. Best & Flanagan, 645 N.W.2d 495 (Minn.App.2002). The court of appeals concluded that the Minnesota Nonprofit Corporations Act (MNCA), Minn.Stat. ch. 317A, does not give authority to nonprofit corporations to appoint an independent SLC to evaluate a shareholder’s derivative action. The court also noted that even if a nonprofit corporation did have such statutory authority, in this case Murnane failed to meet the business judgment rule threshold test of independence and good faith.

On further review, we affirmed the court of appeals, but on different grounds. Janssen I. We held that the MNCA does not prohibit nonprofit corporations from appointing independent SLC’s with the authority to decide whether the corporation should join a shareholder’s derivative action. Janssen I, 662 N.W.2d at 888. We also determined that after the district court initially was unable to find sufficient indicia of independence and good faith in Murnane’s investigation to invoke the business judgment rule, the court should not have given Murnane an opportunity to conduct a second review. Thus, our analysis of the business judgment rule focused on Murnane’s first review. Because we concluded that Murnane failed to conduct his first review with sufficient independence and good faith to deserve the deference of the business judgment rule, we held that the district court erred when it granted MPRA’s motion to dismiss Janssen’s shareholder’s derivative action against Best & Flanagan. We then remanded the case to the district court for trial. Id. at 890.

On remand to the district court, Best & Flanagan again moved to dismiss. Best & Flanagan argued that the district court’s October 22, 2001 judgment granting the motion to dismiss as to all defendants had become final as to Best & Flanagan. Best & Flanagan asserted that because it was not named in or served with the notice of appeal and did not participate in Janssen I, the district court no longer had jurisdiction over it.

In response to Best & Flanagan’s motion, the district court observed that the caption of Janssen’s appellate brief in Janssen I lists MPRA as “Defendant and Respondent” while referring to Best & Flanagan only as Defendants but not Respondents. Further, the court observed that all appellate orders, opinions, and briefs in Janssen I listed Best & Flanagan only as “defendants,” not respondents or appellants. Nevertheless, the court issued an order on November 25, 2003, denying Best & Flanagan’s motion. The court concluded that it was constrained by the mandate of our court because we remanded the case for trial. But the district court invited an immediate appeal of this issue which it deemed “jurisdictional.” Best & Flanagan then appealed.

Janssen moved to dismiss the appeal. The court of appeals concluded that the district court’s order did not involve jurisdiction, but rather an interpretation of remand instructions from the court of appeals and our court. As a result, the court of appeals concluded that the district court’s order was not immediately appeal-able and dismissed the appeal. Best & Flanagan petitioned for review.

I.

We must determine if the district court’s denial of Best & Flanagan’s motion to dismiss was immediately appealable. To do so, we must decide whether the court’s November 25, 2003 order involves an issue of jurisdiction or only an interpretation of appellate court instructions on remand. An order denying a motion to dismiss for lack of jurisdiction is appeal-able as a matter of right, as it is not merely retention of the action for trial, but a determination compelling the defendant to take on the burden of litigation that it has a legal right to avoid. McGowan v. Our Savior’s Lutheran Church, 527 N.W.2d 830, 833 (Minn.1995) (holding dismissal based on lack of subject matter jurisdiction is appealable); Hunt v. Nev. State Bank, 285 Minn. 77, 88, 172 N.W.2d 292, 300 (1969) (holding dismissal based on lack of personal jurisdiction is appealable). Therefore, if the district court’s order denying Best & Flanagan’s motion to dismiss was based, at least in part, on the court’s rejection of jurisdictional grounds for dismissal, the court’s order was immediately appealable. If, on the other hand, the court’s order was based solely on the court’s interpretation of the instructions remanding the case “for trial,” the order was not immediately appealable.

We have held that district courts are given broad discretion to determine how to proceed on remand, as they may act in any way not inconsistent with the remand instructions provided. John Wright & Assocs. v. City of Red Wing, 256 Minn. 101, 102, 97 N.W.2d 432, 434 (1959). Appellate courts review a district court’s compliance with remand instructions under the deferential abuse of discretion standard. See Halverson v. Vill. of Deerwood, 322 N.W.2d 761, 766-67 (Minn.1982). Neither the Rules of Civil Appellate Procedure nor our case law permits a party to appeal a district court’s interpretation of a remand order before a final judgment is entered.

In its motion, Best & Flanagan sought to be dismissed from the action on the ground that the district court lacked jurisdiction over the claims against it. Best & Flanagan argued that the district court’s October 15, 2001 order and the subsequent judgment dismissed Janssen’s claims against all defendants. Therefore, Best & Flanagan contends, when Janssen did not serve them with the notice of appeal, the judgment of dismissal became final as to the claims against Best & Flanagan, depriving the appellate courts of jurisdiction over those claims in the first appeal and, as relevant here, depriving the district court of jurisdiction over those claims on remand.

Although Best & Flanagan’s motion to dismiss was integrally related to the ability of the district court to carry out our remand instructions, the core of its argument was that the court lacked jurisdiction over the claims against it. Similarly, although the district court denied the motion based on concern for frustrating the remand order, as the court recognized, its denial resulted in rejection of Best & Flanagan’s jurisdictional argument.

We conclude that if we were to treat the district court’s order denying Best & Flanagan’s motion to dismiss after remand as only involving an interpretation of remand instructions, we would ignore the essence of Best & Flanagan’s motion. The inescapable result of this conclusion is that denial of Best & Flanagan’s motion to dismiss after remand was at least in part based on lack of jurisdiction and, as we have previously held, denial of a motion to dismiss for lack of jurisdiction is appeal-able as a matter of right. McGoioan, 527 N.W.2d at 838. Therefore, we hold that the court of appeals erred when it held that the distinct court’s order denying Best & Flanagan’s motion was not immediately appealable.

II.

We now address the merits of Best & Flanagan’s appeal — whether the district court still had jurisdiction over the claims against Best & Flanagan on remand. We begin by noting that we limited our analysis in Janssen I to the business judgment rule issue. The parties did not direct our attention to Janssen’s failure to make Best & Flanagan a party to that appeal or raise the legal implications of that failure, and we did not address the issue. As a result, we conclude that our order for remand for trial in Janssen I should not be taken as foreclosing Best & Flanagan’s arguments in this appeal.

Best & Flanagan argues that the district court’s October 15, 2001 order and the judgment entered based on that order dismissed Janssen’s claims against all defendants and that when Janssen did not serve Best & Flanagan with the notice of appeal, the judgment of dismissal became final as to the claims against Best & Flanagan. As a result, Best & Flanagan argues, the courts no longer have jurisdiction over those claims.

It is axiomatic that a judgment or appealable order becomes final if a timely appeal is not taken. See, e.g., Carlson v. Panuska, 555 N.W.2d 745, 746 (Minn.1996) (“The Panuskas did not appeal the entry of the default judgment. On September 25, 1994, the time limit for appealing the judgment expired and the judgment became final.”); Dieseth v. Colder Mfg. Co., 275 Minn. 365, 370-71, 147 N.W.2d 100, 103 (1966) (“It follows that inasmuch as the original order was appeal-able and no appeal was taken from it during the time within which that could be done, it is a final adjudication * * *.”). Here, a timely appeal was taken from the judgment, but only one of the defendants, MPRA, was served with the notice of appeal and thereby made party to the appeal. It is well-established that failure to serve the notice of appeal on an adverse party means that the appellate court cannot alter the judgment as to that party. See, e.g., Thwing v. Minowa Co., 139 Minn. 157, 159-60, 165 N.W. 1065, 1066 (1918) (“[T]he notice of appeal must be served on each adverse party as to whom it is sought to review, in this court, any order or judgment * * *. Where the order appealed from is indivisible, and must be affirmed, modified, or reversed as to all parties to the action or proceeding, the appeal must be dismissed if they are not all made to parties to the appeal.”); Thayer v. Duffy, 240 Minn. 234, 255, 63 N.W.2d 28, 40 (1953) (“[I]t also appears settled that, when an adverse party has not been served with notice of appeal from a judgment or order which is divisible, the appeal need not be dismissed but our consideration thereof will be limited to issues between appellant and the parties properly served with such notice.”). Thus, whether by reason of dismissal of the appeal of an indivisible judgment or, in the case of a divisible judgment, the limitation of appellate issues to those affecting properly served parties, it is apparent that as to an adverse party not served with the notice of appeal, the appellate court cannot act. In other words, the judgment is final as to a party not served with the notice of appeal.

Janssen does not disagree with these principles or assert that he made Best & Flanagan a party to the appeal. Instead, Janssen contends that there was no need to serve Best & Flanagan because there was no issue for Janssen to appeal as to Best & Flanagan. Janssen contends that neither the October 15, 2001 dismissal order nor the resulting judgment affected the claims against Best & Flanagan because, according to Janssen, the district court granted only MPRA’s motion to dismiss. The basis for this argument is the court’s statement in its November 20, 2000 order that “the lawyer defendants’ motion is moot, and the court has considered only the arguments raised by the MPRA.” Janssen argues that this ruling denied Best & Flanagan’s motion to dismiss, and the court’s subsequent October 15, 2001 ruling therefore addressed only MPRA’s motion, without affecting the claims against Best & Flanagan.

We find Janssen’s argument unpersuasive for several reasons. First, Best & Flanagan’s motion to dismiss was not based solely on the attorney-client argument that was the subject of the district court’s mootness ruling in the November 20, 2000 order. Best & Flanagan also sought dismissal based on the business judgment rule grounds argued by MPRA, adopting MPRA’s argument on that issue. Second, although Janssen argues Best & Flanagan had no standing to argue for dismissal based on the business judgment rule, the court allowed Best & Flanagan to participate in the proceedings on the renewed dismissal motion, indicating that the court thought Best & Flanagan had an interest in the outcome of that motion. Third, the court’s October 15, 2001 order and the October 22, 2001 judgment both stated that “Defendants’ ” motion to dismiss was granted. Had only MPRA’s motion been at issue, it should have been the singular “Defendant’s” motion dismissed.

Perhaps most significantly, the district court concluded in its memorandum that accompanied the dismissal order (which was incorporated into the judgment) that “Plaintiffs’ Complaint must be dismissed.” The court did not limit that dismissal to claims against MPRA. In fact, it is difficult to conceive how it could have done so. MPRA was named only as a nominal defendant. In this derivative action, the claims were brought on behalf of MPRA and were asserted only against Best & Flanagan. Therefore, dismissal of the complaint necessarily went to the claims against Best & Flanagan. The record indicates that the district court understood this and that its ruling on the business judgment rule necessarily affected the viability of the derivative action against Best & Flanagan. The court explained in its memorandum accompanying the November 20, 2000 order that “[t]he business judgment rule operates to bar a shareholder derivative action on behalf of a corporation when the board of directors determines that the action is not in the corporation’s best interests.” (Emphasis added.) Janssen advances no legally sound explanation of how the claims against Best & Flanagan could continue to exist after the granting of MPRA’s motion.

In sum, the language of the October 22 dismissal order, the court’s memorandum, and the judgment are all consistent with dismissal of Janssen’s claims against all defendants. In contrast, there is nothing in any of those documents that suggests that the dismissal did not affect the claims against Best & Flanagan.

Furthermore, as Best & Flanagan correctly points out, if the order and judgment granted only MPRA’s motion and left the claims against Best & Flanagan viable, the judgment, which then would have covered only some of the claims or some of the parties, would not have been appealable without compliance with the requirements of Minn. R. Civ. P. 54.02, providing that the court may direct entry of final judgment as to one or more, but fewer than all, of the claims or parties only upon an express determination that there was no reason for delay and that judgment should be entered. See Buchman Plumbing Co. v. Regents of the Univ. of Minnesota, 293 Minn. 437, 439, 196 N.W.2d 629, 630 (1972) (per curiam) (“We therefore hold that in a multiparty action an order dismissing one of the parties for failure to state a claim upon which relief may be granted is not an appealable order and that an appeal from such an order must be dismissed unless the trial court expressly determines that there is no reason for delay and directs the entry of judgment thereon.”).

We conclude that the district court’s judgment dismissed the claims against Best <& Flanagan and that judgment became final when the period to appeal from the judgment expired without Janssen making Best & Flanagan a party to a timely appeal. Because the dismissal was final as to the claims against Best & Flanagan, the district court had no jurisdiction over those claims on remand.

Reversed and remanded to the district court for dismissal.

ANDERSON, G. BARRY, J., not having been a member of this court at the time of the argument and submission, took no part in the consideration or decision of this case.

      . In its reply memorandum in support of its motion to dismiss, Best & Flanagan had made it clear that the attorney-client relationship argument was directed at any possible direct claims asserted by the plaintiffs and essentially conceded the mootness of that argument in light of Janssen's concession that only derivative claims were asserted.

      . Janssen's notice of appeal referred to the district court’s October 15, 2001 order granting the motion to dismiss. The court of appeals rendered its decision determining that the order granting the motion to dismiss was not appealable, but construed the appeal to be from the October 22 judgment.

      . In cases where we have concluded that the court of appeals erroneously dismissed an appeal, our typical practice has been to remand to that court for consideration of the merits of the appeal. E.g., Engvall v. Soo Line R.R. Co., 605 N.W.2d 738, 745 (Minn.2000). When appropriate, however, we have addressed the merits of the appeal. Here, the parties have already been through one round of appellate review culminating in Janssen I and now this second round. Remand to the court of appeals could result in yet a third round. As the parties have fully briefed the merits, in the interests of judicial economy and fairness to the parties, we will address the issue rather than remand to the court of appeals.


author: WILLIS, Judge.

text:
    In the Matter of the CIVIL COMMITMENT OF Ryan J. RABOIN.
    No. A05-615.
    Court of Appeals of Minnesota.
    Sept. 21, 2005.

      Carrie M. Vaia, Joslin, Ryan & Berry Law Offices, P.A., Chisago City, MN, for appellant Ryan J. Raboin.
    Katherine M. Johnson, Chisago County Attorney, Susan E. Drabek, Assistant County Attorney, Center City, MN, for respondent Gerald Gammel, M.D.
    Considered and decided by MINGE, Presiding Judge; WILLIS, Judge; and STONEBURNER, Judge.
   OPINION

WILLIS, Judge.

Appellant challenges the district court’s order authorizing involuntary administration of neuroleptic medication and the court’s amended order denying appellant and his mother’s request to appoint appellant’s mother as his substitute decision-maker. Appellant argues that (1) the order authorizing the administration of neu-roleptic medication lacks the specificity required by law, and (2) the district court erred by concluding that it could not appoint appellant’s mother as his substitute decision-maker because she was not designated by the local mental-health authority. We reverse.

FACTS

The facts of this case are undisputed. In November 2004, appellant Ryan J. Ra-boin was adjudicated mentally ill and was committed to the custody of the Commissioner of Human Services. In January 2005, the facility treating Raboin petitioned for authorization to administer neu-roleptic medication to him. The district court held a Jarvis hearing on February 16, 2005. On that same day, Raboin requested that the district court appoint Ra-boin’s mother as his substitute decision-maker should the district court find that Raboin lacked capacity to make decisions regarding neuroleptic medication.

The next day, the district court issued an order determining that Raboin lacked the capacity to make decisions regarding the administration of neuroleptic medication and authorizing the facility to treat Raboin with neuroleptic medication without his consent. The district court’s order expires on February 16, 2007, or at the termination of Raboin’s commitment, whichever occurs first. The district court’s memorandum addressed Raboin’s request to appoint his mother as his substitute decision-maker, but the order did not. On March 2, 2005, the district court issued an amended order denying the request. The district court appointed no alternative substitute decision-maker for Raboin. This appeal follows.

ISSUES

1. Does the district court’s order adequately specify the course of treatment authorized for Raboin’s treatment?

2. Did the district court err by concluding that an individual substitute decision-maker must first be designated by the local mental-health authority?

ANALYSIS

We review the record in the light most favorable to the district court’s decision. In re Knops, 536 N.W.2d 616, 620 (Minn.1995). We will affirm the district court’s findings unless they are clearly erroneous. In re Martin, 527 N.W.2d 170, 172 (Minn.App.1995). But statutory construction is a question of law subject to de novo review. Brookfield Trade Ctr., Inc. v. County of Ramsey, 584 N.W.2d 390, 393 (Minn.1998). And any ambiguities in the Civil Commitment Act should be “construed against the state and in favor of the person who is being deprived of his or her liberty.” In re Colbert, 464 N.W.2d 505, 507 (Minn.1991).

I.

Patients subject to civil commitment are presumed to have the capacity to make decisions regarding the administration of neuroleptic medication. Minn.Stat. § 253B.092, subd. 5(a) (2004). If a patient refuses such treatment and the district court finds that the patient lacks the capacity to make that decision, the district court may authorize the treating facility to administer neuroleptic medication. Id., subd. 8(e) (2004).

Raboin argues that the district court’s order authorizing the involuntary administration of neuroleptic medication violates his rights under Price v. Sheppard, 307 Minn. 250, 239 N.W.2d 905 (1976), and Jarvis v. Levine, 418 N.W.2d 139 (Minn.1988), because (1) the order is unclear regarding the authorized duration of the neuroleptic-medication treatment; (2) the order does not limit the dosage authorized for Raboin’s treatment; and (3) the order allows Raboin to be treated “with any neu-roleptic medication.”

In Price v. Sheppard, the Minnesota Supreme court concluded that involuntary, intrusive forms of treatment infringe on a committed patient’s constitutional right to privacy. 307 Minn, at 257-59, 239 N.W.2d at 910-11. Because of the potentially severe effects of intrusive treatment, the supreme court determined that decisions regarding the administration of such treatment should not be left solely to the discretion of medical personnel, and it adopted procedures to protect the rights of unconsenting patients when the administration of intrusive treatment is being considered. Id. at 262, 239 N.W.2d at 912-13. In Jarvis v. Levine, the supreme court, applying Minnesota statutes and the Minnesota Constitution, held that the involuntary administration of neuroleptic medication is an intrusive treatment requiring the application of the procedures described in Price. 418 N.W.2d at 148.

In interpreting Jarvis, this court determined that a district court’s order authorizing the involuntary administration of neuroleptic medication must identify “the limits on the hospitals’ authority to administer a course of treatment.” In re Steen, 437 N.W.2d 101, 104 (Minn.App.1989). This court further interpreted “ ‘course of treatment’ as a reasonably specific time period during which a physician may attempt to treat a patient with a reasonably specific dosage of a particular neuroleptic medication, or an equivalent dosage of another or several other types of neuroleptic medication.” Id.; see also In re Lambert, 437 N.W.2d 106, 108 (Minn.App.1989) (finding that the district court’s order, taken as a whole, adequately outlined a course of treatment because the findings specified the particular medication and limits on the dosage to be administered to the patient), review denied (Minn. May 12, 1989). This court also concluded that orders authorizing the administration of neuroleptic medication must be “tailored to the circumstances of the individual situation,” noting that “[s]ome orders will require more specificity on the authorized course of treatment, while others will require less.” Steen, 437 N.W.2d at 105 (footnote omitted).

After Jarvis, the Civil Commitment Act was amended in 1989 to include a judicial procedure for authorizing the administration of neuroleptic medication to uncon-senting patients. 1989 Minn. Laws ch. 282, art. 2, § 100. But although Steen was decided in 1989, it was not until 1996 that the legislature addressed in the statute the issues of the duration of authorized treatment and the dosage of neuroleptic medication authorized for the treatment of an unconsenting patient. 1995 Minn. Laws ch. 189, § 3.

A. Duration of Treatment

Raboin first argues that the only restriction in the district court’s order “is that the order is valid only until the ‘termination of the commitment.’ ” Under Minn. Stat. § 253B.092, subd. 8(g), a district court “may authorize the administration of neuroleptic medication until the termination of a determinate commitment.” Here, the district court’s order expires on February 16, 2007, or at the termination of Raboin’s commitment, should it occur first. Because Raboin’s commitment is determinate and the district court’s order expires no later than the termination of Raboin’s commitment, the duration of the order is specifically authorized by statute.

B. Authorized Dosage

Raboin also argues that the district court’s order lacks the specificity required by law because it fails to identify the dosage of neuroleptic medication authorized for Raboin’s treatment. But the statute provides that “[t]he court may limit the maximum dosage of neuroleptic medication that may be administered.” MinmStat. § 253B.092, subd. 8(h). This language is permissive, not mandatory. See Minn. Stat. § 645.44, subd. 15 (2004) (providing that “ ‘may’ is permissive”). Therefore, the fact that the district court’s order does not identify a maximum dosage authorized for Raboin’s treatment is not fatal to the order’s validity.

C. Type of Neuroleptic Medication Authorized

Finally, Raboin argues that the district court’s order is legally insufficient because it allows Raboin to be treated with any neuroleptic medication. While the legislature has specifically addressed the issues of duration and dosage of authorized medication, it has not addressed the directive in Steen that a district court’s order must identify the neuroleptic medication or medications that are authorized to treat an unconsenting patient so that the order is tailored to the specific circumstances of the individual situation. Steen, 437 N.W.2d at 104-05. A patient’s need for treatment with neuroleptic medication must be balanced against the intrusiveness of that treatment. Id. Because different medications have different side effects, the type of neuroleptic medication authorized is directly related to the degree of intrusiveness of neuroleptic-medication treatment. Id. Because a patient’s constitutional rights are at stake, we conclude that a district court’s order that does not identify the particular neuroleptic medication or medications authorized to treat an uncon-senting patient is not sufficiently tailored to the specific circumstances and fails to protect the patient’s rights. Here, the district court’s order does not identify any particular neuroleptic medication that is authorized for Raboin’s treatment. Because the order is not sufficiently tailored to Raboin’s circumstances, it lacks the required specificity.

II.

Raboin argues finally that the district court improperly denied his and his mother’s request that Raboin’s mother be appointed as his substitute decision-maker, claiming that the district court misinterpreted the statute when it found that an individual substitute decision-maker must be designated by the local mental-health authority. The statute provides:

Upon request of any person, and upon a showing that administration of neuroleptic medications may be recommended and that the person may lack capacity to make decisions regarding the administration of neuroleptic medication, the court shall appoint a substitute decision-maker with authority to consent to the administration of neuroleptic medication as provided in this section.... The substitute decision-maker must be an individual or a community or institutional multidisciplinary panel designated by the local mental health authority.

Minn.Stat. § 253B.092, subd. 6(a) (2004). Interpretation of this subdivision is a matter of first impression.

The parties dispute the meaning of the following sentence in subdivision 6(a): “The substitute decision-maker must be an individual or a community or institutional multidisciplinary panel designated by the local mental health authority.” The district court construed the statute to mean that the local mental-health authority must designate either an individual or a multidisciplinary panel to be the substitute decision-maker. Raboin urges us to interpret the statute as requiring that the substitute decision-maker must be (1) an individual or (2) a multidisciplinary panel designated by the local mental-health authority.

“When interpreting a statute, we first look to see whether the statute’s language, on its face, is clear or ambiguous. A statute is only ambiguous when the language therein is subject to more than one reasonable interpretation.” Am. Family Ins. Group v. Schroedl, 616 N.W.2d 273, 277 (Minn.2000) (quotation and citation omitted). Words and phrases in a statute are construed according to rules of grammar and according to their common and approved usage. Minn.Stat. § 645.08(1) (2004). “The object of all interpretation and construction of laws is to ascertain and effectuate the intention of the legislature. Every law shall be construed, if possible, to give effect to all its provisions.” Minn. Stat. § 645.16 (2004). When the words of a statute are ambiguous, we attempt to ascertain the intention of the legislature by considering, inter alia, the object of the statute, the consequences of a particular interpretation, and the legislative history. See id. We conclude that the statute is ambiguous. Both the district court and Raboin have offered reasonable interpretations.

The process for determining a substitute decision-maker was added to the Civil Commitment Act in 1997. 1997 Minn. Laws ch. 217, art. 1, § 60. Before the enactment of section 253B.092, the Minnesota legislature requested that the supreme court appoint an advisory task force on the civil-commitment system.

The task force’s final report recommended a new process for the administration of neuroleptic medication. The task force sought to create a process that would protect patients’ civil rights but that would also provide for timely treatment. Minn. Sup.Ct. Advisory Task Force on the Civil Commitment Sys., Final Report 41 (Jan. 17, 1996). The task force recommended that, as part of this process, the district court designate a substitute decision-maker for patients who lack the capacity to make decisions regarding the administration of neuroleptic medication. Id. at 41-42. The task force explained: “The substitute decision maker appointed by the court can be an individual such as a friend or family member. In addition, the local mental health authority can establish a multi-disciplinary panel, which can be community based or institutional based, to serve as the substitute decision maker.” Id. at 42.

In summarizing its recommendations, the task force wrote: “The substitute decision maker shall be an individual or a multi-disciplinary panel, community or institutional, designated by the local mental health authority.” Id. at 46. The statute adopted by the legislature reflects the wording of the recommendation, except that in the statute the words “community or institutional” precede the term “multidisciplinary panel,” a difference that we conclude is insignificant. Because the legislature adopted in the statute the task force’s recommendation, we conclude that the legislature also intended the statute’s language to have the meaning described in the task force’s explanation that the substitute decision-maker could be either (1) an individual or (2) a multidisciplinary panel designated by the local mental-health authority. While we express no opinion regarding the appointment of Raboin’s mother as his substitute decision-maker, the district court erred by concluding that it lacked the authority to appoint her as Raboin’s substitute decision-maker because she was not designated by the local mental-health authority.

Further, Minn.Stat. § 253B.092, subd. 6(a), provides that the district court shall appoint a substitute decision-maker on the request of any person upon a showing that neuroleptic medications may be recommended and that the person may lack the capacity to make decisions regarding the administration of such medications. This provision is mandatory. See Minn. Stat. § 645.44, subd. 16 (2004) (stating that “shall” is mandatory). Here, neuroleptic medication was recommended, and Raboin was found to lack the capacity to make an informed decision regarding his treatment with such medication. Because Raboin requested the appointment of a substitute decision-maker, the district court erred by failing to appoint any substitute decision-maker.

DECISION

Because the district court’s order fails to identify the neuroleptic medication or medications authorized for Raboin’s treatment, the order lacks the specificity required by law. The district court erred by concluding that section 253B.092, subdivision 6(a), requires that an individual substitute decision-maker be designated by the local mental-health authority. Further, because the statute requires the district court to appoint a substitute decision-maker at the request of a person when the requisite showing is made and because such a showing was made here, the district court erred by failing to appoint a substitute decision-maker for Raboin. We therefore reverse the district court’s order of February 17, 2005, as amended on March 2, 2005, as it relates to (1) the description of the neuro-leptic medication authorized and (2) the appointment of a substitute decision-maker.

Reversed.

      . The record shows that Raboin's six-month commitment ended in May 2005. While the parties do not address whether Raboin’s appeal of the order authorizing the administration of neuroleptic medication is moot, we may raise the issue on our own. In re Schmidt, 443 N.W.2d 824, 826 (Minn.1989). We conclude that the issue is not moot because, due to the relatively short duration of initial commitments, this issue is "capable of repetition yet evading review.” In re Kinzer, 375 N.W.2d 526, 529-30 (Minn.App.1985).

      . In 1997, the legislature replaced the previous provisions regarding the administration of neuroleptic medication in section 253B.03, subdivision 6c, with section 253B.092. 1997 Minn. Laws ch. 217, art. 1, § 60. Section 253B.092 is currently effective.


text:
    FORESTVIEW THE BEAUTIFUL, INC., Appellant, v. ALL NATION INSURANCE COMPANY, Respondent.
    No. A05-50.
    Court of Appeals of Minnesota.
    Oct. 11, 2005.

      Harry A. Sieben, Jr., Jeffrey M. Mont-petit, Sieben, Grose, Von Holtum & Carey, Ltd., Minneapolis, MN, for appellant.
    Robert E. Kuderer, Chad H. Gabert, Stacey A. Nilsen, Johnson & Condon, P.A., Minneapolis, MN, for respondent.
    Considered and decided by KLAPHAKE, Presiding Judge; TOUSSAINT, Chief Judge; and WILLIS, Judge.
   OPINION

WILLIS, Judge.

In this appeal from partial summary judgment, appellant argues that the district court erred by determining that the business-income endorsement in appellant’s insurance policy provides coverage only if there is a complete cessation of business activity and by granting respondent’s motion for partial summary judgment. We affirm.

FACTS

Appellant Forestview The Beautiful, Inc. (Forestview) owned and operated a resort with 20 cabins and a lodge on Leech Lake in Walker. On July 4, 1999, a severe storm damaged the resort. The storm rendered four cabins unrentable, and Forestview closed those cabins for the rest of the summer. Forestview was able to rent the other cabins, and it continued to operate the resort despite the storm damage.

Forestview subsequently filed a claim with its insurance carrier, respondent All Nation Insurance Company (All Nation), for damage and losses resulting from the storm. Forestview sought coverage under, inter alia, its policy’s “business income and extra expense” endorsement. All Nation refused to compensate Forestview for all of its claimed losses, and Forestview filed a summons and complaint against All Nation, alleging that All Nation breached its contractual duties under the insurance policy.

Forestview and All Nation then settled most of Forestview’s claims, and All Nation moved for partial summary judgment on the remaining claims under the business-income-and-extra-expense endorsement. The district court determined that the endorsement covered Forestview’s extra-expense claims but that the business-income provision did not apply. Accordingly, the district court denied All Nation’s motion for partial summary judgment on the extra-expense claim and granted partial summary judgment on the business-income claim. The extra-expense claim was settled, and Forestview’s appeal followed.

ISSUE

Did the district court err by determining that the business-income endorsement does not cover appellant’s claimed losses and by granting respondent’s motion for partial summary judgment?

ANALYSIS

On appeal from summary judgment, we consider whether there are any genuine issues of material fact and whether the district court erred in its application of the law. N. States Power Co. v. Minn. Metro. Council, 684 N.W.2d 485, 491 (Minn.2004). The application and interpretation of an insurance policy is subject to de novo review. Jorgensen v. Knutson, 662 N.W.2d 893, 897 (Minn.2003). Here, the facts relevant to the application of the business-income endorsement are undisputed.

The business-income endorsement in Forestview’s policy provides that All Nation will “pay for the actual loss of Business Income you sustain due to necessary suspension of your ‘operations’ during the ‘period of restoration.’ ” The policy defines “operations” as “business activities occurring at the described premises.” The district court determined that “the plain language of the policy requires a complete stoppage or cessation of business activities in order to trigger [business-income] coverage.” Whether a partial suspension of operations triggers business-income coverage is a matter of first impression in Minnesota.

Forestview first argues that the district court erred because the business-income endorsement is ambiguous. For-estview argues that “operations” is plural and is therefore subject to multiple interpretations. Terms susceptible to more than one meaning are ambiguous and “must be construed in favor of coverage.” Mickman Bros. v. Farm Bureau Mut. Ins. Co., 639 N.W.2d 890, 894 (Minn.App.2002).

Although “operations” is defined in the endorsement, Forestview notes that “operations could and should reasonably be interpreted to mean more than one business activity, such as running the restaurant, maintaining cabins, hosting conventions or renting out boats.” But closing 4 cabins while the other 16 cabins remained open was not a suspension even of Forestview’s cabin-rental operation. At best, it was a partial suspension of the cabin-rental operation, and neither the policy’s nor Forest-view’s definition of “operations” supports coverage for a partial suspension of a single operation.

Forestview next argues that our ruling in Wood Goods Galore, Inc. v. Reinsurance Assoc, of Minn., 478 N.W.2d 205 (Minn.App.1991), review denied (Minn. Jan. 30, 1992), supports coverage of a partial suspension of operations under its business-income endorsement. In Wood Goods, we held that a furniture manufacturer and retailer was entitled to business-income coverage when a suspension of operations at its destroyed manufacturing plant affected sales at its two retail stores. Wood Goods, 478 N.W.2d at 207, 210. Because the entire manufacturing operation at the plant was suspended and the plant could not produce furniture, the retail stores lost income. Id. But here, the cabin-rental operation remained open after the storm; only 4 of the 20 cabins at the resort were closed. We conclude that Wood Goods does not support Forestview’s claim that it is entitled to business-income coverage for its partial suspension of operations.

Whether a partial suspension of operations triggers coverage turns on the definition of “suspension.” When the language in an insurance policy is unambiguous, the terms in the policy must be given their plain and ordinary meanings. Thommes v. Milwaukee Ins. Co., 641 N.W.2d 877, 880 (Minn.2002). “Suspension” is defined as “[t]he act of suspending or the condition of being suspended.” The American Heritage Dictionary 1744 (4th ed.2000). “Suspend” is defined as “[t]o cause to stop for a period.” Id. at 1743. The plain and ordinary meaning of “suspension” requires a complete cessation and does not support coverage when only a partial suspension occurred.

The “vast majority” of courts that have considered whether the definition of “suspension of operations” for purposes of business-income coverage includes a partial suspension of operations have held that similar policies “require[ ] a cessation of operations to trigger coverage.” Home Indem. Co. v. Hyplains Beef, L.C., 893 F.Supp. 987, 991-93 (D.Kan.1995) (holding that the plain meaning of “necessary suspension” requires a “complete cessation”); accord Buxbaum v. Aetna Life & Cas. Co., 103 Cal.App.4th 434, 126 Cal.Rptr.2d 682, 693-94 (2002) (considering the plain meaning of “necessary suspension” in a nearly identical provision and holding that a “total cessation of business activity must occur” and that coverage does not apply “[i]f the insured continues to operate despite physical damage”).

We conclude that the plain and ordinary meaning of “suspension” in Forestview’s business-income endorsement does not include a partial suspension of business operations. We therefore conclude that For-estview is not entitled to business-income coverage and that the district court did not err by granting All Nation’s motion for partial summary judgment.

DECISION

Because Forestview’s insurance policy requires a “suspension” of business operations to trigger business-income coverage and Forestview did not stop its business operations, Forestview is not entitled to coverage under the business-income endorsement in its insurance policy. The district court did not err by granting partial summary judgment for All Nation.

Affirmed.


author: PER CURIAM.

text:
    2005 ND 168
    In the Matter of the Application for DISCIPLINARY ACTION AGAINST Richard C. WILKES, a Member of the Bar of the State of North Dakota Disciplinary Board of the Supreme Court of the State of North Dakota, Petitioner v. Richard C. Wilkes, Respondent.
    No. 20050297.
    Supreme Court of North Dakota.
    Oct. 4, 2005.
   DISBARMENT ORDERED

PER CURIAM.

[¶ 1] Richard C. Wilkes was admitted to practice as an attorney at law in the courts of North Dakota on September 22, 1976, and his name has appeared on the roll of attorneys since that date. On January 15, 2004, Wilkes was placed on interim suspension under N.D.R. Lawyer Discipl. 3.4(B) until further order of the Court. See Disciplinary Board v. Wilkes, 2004 ND 13, 673 N.W.2d 614. After a hearing on the matter, Wilkes’s suspension was continued in effect. See Disciplinary Board v. Wilkes, 2004 ND 18, 674 N.W.2d 1.

[¶ 2] A Petition for Discipline asserts that Wilkes’s conviction of two felonies for attempt to evade and defeat tax assessment under 26 U.S.C. § 7201 and mail fraud under 18 U.S.C. § 1341 violates N.D.R. Lawyer Discipl. 4.1, and is grounds for discipline under N.D.R. Lawyer Dis-cipl. 1.2.

[¶ 3] Wilkes signed a Stipulation and Consent to Discipline, acknowledging the material facts are true and cannot be successfully defended. Wilkes admits the Stipulation is given freely and voluntarily and without coercion or duress. Wilkes further agrees to discipline in the form of disbarment and the payment of costs of $250.

[¶ 4] The matter was submitted to a Hearing Panel of the Disciplinary Board under N.D.R. Lawyer Discipl. 4.2. The Report of the Hearing Panel was filed August 30, 2005. The Hearing Panel found that Wilkes was convicted of two felonies for attempt to evade and defeat tax assessment under 26 U.S.C. § 7201 and mail fraud under 18 U.S.C. § 1341.

[¶ 5] The Hearing Panel concluded that Wilkes’s conviction is a serious crime within the meaning of N.D.R. Lawyer Discipl. 4.1. Further, Wilkes’s conviction is a violation of N.D.R. Lawyer Discipl. 1.2 which provides a lawyer may be disciplined for committing a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer.

[¶ 6] The Report of the Hearing Panel was referred to the Supreme Court under N.D.R. Lawyer Discipl. 3.1(F)(2). The Court considered the matter, and

[¶ 7] ORDERED, the Report of the Hearing Panel and the Stipulation and Consent to Discipline are accepted, and Richard C. Wilkes is DISBARRED from the practice of law.

[¶ 8] FURTHER ORDERED, Richard C. Wilkes pay the costs and expenses of the disciplinary proceedings in the amount of $250, payable to the Secretary of the Disciplinary Board.

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


text:
    2005 ND 171
    In the Matter of the Application for Reinstatement of Randall L. HOFFMAN. Randall L. Hoffman, Petitioner v. Disciplinary Board of the Supreme Court of the State of North Dakota, Respondent.
    No. 20050162.
    Supreme Court of North Dakota.
    Oct. 18, 2005.

      Randall L. Hoffman (pro se), Elgin, N.D.
    Paul W. Jacobson, Bismarck, N.D. for respondent.
   PER CURIAM.

[¶ 1] Randall L. Hoffman petitioned for reinstatement to the bar and challenged the Disciplinary Board’s recommendation that he not be admitted to the bar at this time. We adopt the recommendation of the Board and deny Hoffman’s petition for reinstatement.

I

[¶ 2] On October 23, 2003, this Court suspended Hoffman from the practice of law for one year beginning December 1, 2003, and ordered that he pay the costs of the disciplinary proceeding because of his violations of N.D.R. Prof. Conduct 1.12(a), 3.4(d), 4.2 and 4.4. See In re Hoffman, 2003 ND 161, ¶ 33, 670 N.W.2d 500. The disciplinary action was based on three incidents of attorney misconduct. In the first incident, the Toltzman matter, Hoffman, while sitting as a district judge, granted a default judgment in favor of the wife in a divorce action. Id. at ¶ 2. After Hoffman resigned as district judge, he represented the husband in the Toltzman divorce action without the consent of the wife and moved to amend the divorce judgment. Id. at ¶ 3. In the second incident, Hoffman attempted to settle a visitation dispute with Ray Remmick, the father of the child of Hoffman’s fiancée without Remmick’s consent to the discussion being held outside the presence of his attorney. Id. at ¶¶ 4, 5. Hoffman threatened that if Remmick did not sign a document indicating his consent and discuss visitation without his attorney being present, Remmick would not receive visitation with the child that night. Id. at ¶ 5. When Remmick refused, he was denied visitation. Id. In the third incident, Hoffman harassed Remmick with numerous discovery requests in the visitation proceedings seeking facts intimate to his sexual relationship with Hoffman’s fiancée.

[¶ 3] In October 2004, Hoffman filed a petition for reinstatement under N.D.R. Lawyer Discipl. 4.5. Following a March 11, 2005, hearing before a hearing panel appointed by the Board, the Board recommended that Hoffman not be currently reinstated to the practice of law because he had failed to meet his burden of demonstrating his qualifications for reinstatement under N.D.R. Lawyer Discipl. 4.5(F)(3) and (5). The Board also recommended that Hoffman pay the costs of the reinstatement proceeding in the amount of $1,558.10.

II

[¶ 4] Hoffman raises numerous challenges to the Board’s findings, conclusions and recommendation.

[¶ 5] “A court which has the power to suspend or disbar an attorney also has the power to reinstate, upon proper and satisfactory proof that, as a result of his discipline, he has become a fit and proper person to be intrusted with the office of an attorney.” Application of Christianson, 202 N.W.2d 756 Syll. ¶ 1 (N.D.1972). Reinstatement is not a matter of right. Application of Christianson, 253 N.W.2d 410, 413 (N.D.1977). Rather, the petitioner has the burden of establishing the averments of his application for reinstatement or readmission by clear and convincing evidence, and the proof must be “of a satisfactory character and of sufficient weight to overcome the former adverse judgment as to the petitioner’s character.” Application of Christianson, 215 N.W.2d 920, 923 (N.D.1974). We review proceedings for reinstatement de novo on the record and accord due weight to the findings, conclusions, and recommendations of the hearing panel as adopted by the Board. In re Montgomery, 2000 ND 127, ¶ 5, 612 N.W.2d 278. Each case must be judged on its own facts and merits. In re Montgomery, 1997 ND 148, ¶ 5, 566 N.W.2d 426.

[¶ 6] The Board determined that Hoffman failed to demonstrate he met the qualifications for reinstatement listed under N.D.R. Lawyer Discipl. 4.5(F)(3) and (5), which provide:

3. The petitioner has not engaged or attempted to engage in the unauthorized practice of law during the period of suspension or disbarment;
5. The petitioner recognizes the wrongfulness and seriousness of the misconduct for which the petitioner was suspended or disbarred.

[¶ 7] The Board made the following relevant findings and conclusions in support of its recommendation to deny Hoffman’s petition for reinstatement:

2.
In large part, the conduct which led to Hoffman’s suspension concerned his involvement in a visitation dispute between his then fiancé[e] (now wife) and the father of her child. During the time of his suspension, Hoffman engaged in communication with the father and the father’s wife through entries in Hoffman’s [I]nternet Yahoo Member Directory profile. These communications were disparaging and demeaning.
3.
During the time of Hoffman’s suspension, the litigation between Hoffman’s wife and the father of her child continued. Among other things, there were filings with the District Court and an appeal to the Supreme Court of North Dakota. Hoffman’s wife, a non-lawyer, purportedly represented herself in all of the proceedings. Hoffman admitted that he assisted his wife in the litigation but stated his assistance was limited to matters of grammar, spelling and syntax.
4.
Hoffman testified that he recognized the wrongfulness and seriousness of the misconduct for which he was originally suspended. His statements, however, appear to be a recitation of the conclusions of the North Dakota Supreme Court and did not reflect contrition or sincerity.
2.
The panel concludes that Hoffman likely engaged in the unauthorized practice of law during his suspension by virtue of his participation in the various filings purportedly made pro se by his wife in the visitation dispute between her and the father of [her] child (Rule 4.5F(3), NDRLD). The North Dakota Supreme Court has stated that an “attorney suspended shall refrain, during such suspension, from all aspects of the ordinary law practice.... ” Disciplinary Board v. Larson, 485 N.W.2d 345 (N.D.1992). Hoffman’s admitted participation with his wife in the preparation of filings with the District Court and the Supreme Court runs afoul of this Rule. Hoffman’s reliance on Rule 5.5 of the North Dakota Rules of Professional Conduct that a lawyer may counsel non-lawyers who wish to represent themselves misses the mark as, at all relevant times, Hoffman was suspended from the practice of law and should have refrained from providing any legal advice or assistance to his wife in connection with the pleadings and filings in connection with the visitation dispute. Hoffman has failed to meet his burden with respect to Rule 4.5F(3).
3.
While his words may have suggested that Hoffman recognizes the wrongfulness and seriousness of the misconduct for which he was suspended, his demeanor during the course of the hearing suggested otherwise. Moreover, his admitted participation in the visitation dispute between his wife and the father of her child, even if such conduct does not rise to the unauthorized practice of law, constitutes further evidence that he does not fully recognize the wrongfulness and seriousness of his misconduct. As such, Hoffman has failed to meet his burden with respect to Rule 4.5F(5).

A

[¶ 8] Hoffman challenges the Board’s finding that he engaged in disparaging and demeaning communications over the Internet with Remmick and his wife during the period of his suspension.

[¶ 9] Hoffman argues that his involvement in the visitation dispute was not, as the Board found, a “large part” of the reasoning for his suspension because he had originally been offered “a $500 cost assessment and 90 day suspension” if he had admitted all of the facts in the prior suspension proceeding. Obviously, Hoffman’s involvement in the visitation dispute was a “large part” of the conduct leading to his suspension. Two of the three incidents of attorney misconduct were directly related to the visitation dispute. See In re Hoffman, 2003 ND 161, ¶¶4-6, 670 N.W.2d 500. Any past offer by the Board to settle the misconduct charges is irrelevant in this proceeding.

[¶ 10] Hoffman objects to the Board’s finding that he “engaged in communication” with Remmick, one of the victims of Hoffman’s previous misconduct, and Remmick’s wife. The Board gave Remmick notice of Hoffman’s petition for reinstatement under N.D.R. Lawyer Dis-cipl. 4.5(F) and allowed Remmick to submit comments and other information concerning the petition for reinstatement. Remmick submitted a letter complaining about Hoffman’s continuing “har[ ]assment” in their visitation dispute and copies of legal documents relating to that dispute filed in the district court. Remmick also submitted approximately 20 copies of 2004 entries from Hoffman’s personal “Profile” on an Internet web page that can be viewed by others. In one entry, Hoffman states, “My stepdaughters have plenty of sunshine in their lives ... except for the stupidity of their natural dads and step-mom.” Another entry states, “I realize that as a matter of record that your hubby admits that he is no rocket scientist ... You are either hilarious or completely lacking common sense. What a waste of human resources, times, energies, and finances!” Yet another entry contains a picture of Hoffman’s family and states, “Its [sic] on the worldwide web. I don’t want a psycho endangering my family.” The other entries contain similarly disparaging and demeaning remarks.

[¶ 11] Hoffman argues he was not communicating with Remmick because the comments were directed at Remmick’s wife and she had to seek out Hoffman’s “Profile” on the Internet to view the comments. During the hearing, Hoffman admitted that he knew Remmick’s wife would find the entries on his Internet “Profile” and that he was “communicating with her.” The only reasonable inference to be drawn from Hoffman’s communications with Remmick’s wife is that she would, in turn, inform Remmick of the contents of Hoffman’s entries. We conclude, as did the Board, that Hoffman intended to convey his disparaging and demeaning remarks to both Remmick and his wife.

[¶ 12] Hoffman also asserts that any reliance placed by the Board on his Internet communications violates his state and federal constitutional rights to freedom of speech. This Court has ruled that the First Amendment does not preclude sanctioning a lawyer for intemperate speech during a courtroom proceeding. See In re Garaas, 2002 ND 181, ¶ 28, 652 N.W.2d 918. Even outside of a courtroom setting, “a lawyer’s speech may be limited more than that of a lay person.” In re Gershater, 270 Kan. 620, 17 P.3d 929, 936 (2001). See also State ex rel. Counsel for Discipline v. Sipple, 265 Neb. 890, 660 N.W.2d 502, 509-10 (2003) (quoting In re Sawyer, 360 U.S. 622, 646-17, 79 S.Ct. 1376, 3 L.Ed.2d 1473 (1959) (Stewart, J., concurring)) (“ ‘Obedience to ethical precepts may require abstention from what in other circumstances might be constitutionally protected speech’ ”). Committee on Legal Ethics v. Douglas, 179 W.Va. 490, 370 S.E.2d 325, 332 (1988) (“statements that are outside of any community concern, and are merely designed to ridicule or exhibit contumacy toward the legal system, may not enjoy First Amendment protection”). In the context of applications for admission or readmission to the bar, courts routinely hold that an applicant’s “abusive, disruptive, hostile, intemperate, intimidating, irresponsible, threatening, or turbulent behavior is a proper basis” for denying the application. In re Lane, 249 Neb. 499, 544 N.W.2d 367, 375 (1996). See also Board of Overseers of the Bar v. Campbell, 663 A.2d 11, 13-14 (Me.1995); In re Alexander, 807 S.W.2d 70, 73-75 (Mo.1991).

[¶ 13] For example, in In re Converse, 258 Neb. 159, 602 N.W.2d 500, 502 (1999), an applicant for admission to the bar argued the Bar Commission’s decision to deny his application should be reversed because the denial rested upon conduct protected by the First Amendment. The Nebraska Supreme Court rejected the argument, reasoning:

An investigation of Converse’s moral character is not a proceeding in which the applicant is being prosecuted for conduct arguably protected by the First Amendment, but, rather, “an investigation of the conduct of [an applicant] for the purpose of determining whether he shall be [admitted].” See In re Doss, 367 Ill. 570, 572, 12 N.E.2d 659, 660 (1937).
Were we to adopt the position asserted by Converse in this case, the Commission would be limited to conducting only cursory investigations of an applicant’s moral character and past conduct. Justice Potter Stewart, writing for the majority in Law Students Research Council v. Wadmond, [401 U.S. 154, 91 S.Ct. 720, 27 L.Ed.2d 749 (1971) ], noted that the implications of such an attack on a bar screening process are that no screening process would be constitutionally permissible beyond academic examination and an extremely minimal check for serious, concrete character deficiencies. “The principle means of policing the Bar would then be the deterrent and punitive effects of such post-admission sanctions as contempt, disbarment, malpractice suits, and criminal prosecutions.” 401 U.S. at 167, 91 S.Ct. 720. Assuming ■ but not deciding that Converse’s conduct may have been protected by the First Amendment to the U.S. Constitution,. Law Students Research Council v. Wadmond, supra, makes clear that a bar commission is allowed to consider speech and conduct in making determinations of an applicant’s character, and that is precisely what has occurred in the instant case. As aptly stated by the South Dakota Supreme Court in In re Egan, 24 S.D. 301, 326-27,123 N.W. 478, 488 (1909):
[T]here can be such an abuse of the freedom of speech and liberty of the press as to show that a party is not possessed “of good moral character,” as required for admission to the bar of this state ■... and therefore to require that such person be excluded from the bar of this state; and to our mind the evidence submitted here shows such an instance.... “Nor can the respondent be justified on the ground of guaranteed liberty of speech. When a man enters upon a campaign of vil[ ]ification, he takes his fate into his own hands, and must expect to be held to answer for the abuse of the privilege extended to him by the Constitution .... ”
We conclude that the Commission properly considered Converse’s conduct as it reflects upon his moral character, even if such conduct might have been protected by the First Amendment. Converse’s first assignment of error is therefore without merit.

Id. at 506. See also In re Martin-Trigona, 55 Ill.2d 301, 302 N.E.2d 68, 72 (1973) (the “question presented is not the scope of petitioner’s rights under the first amendment but whether his propensity to unreasonably react against anyone whom he believes opposes him reveals his lack of responsibility, which renders him unfit to practice law”).

[¶ 14] Under N.D.R. Lawyer Discipl. 4.5(F)(1), the petitioner’s “fitness” is a factor for consideration in assessing the petitioner’s qualifications for reinstatement. We conclude the Board’s consideration of Hoffman’s conduct in harassing the family of the victim of the misconduct that formed part of the basis for his suspension from the practice of law does not violate Hoffman’s rights to freedom of speech under either the state or federal constitutions.

B

[¶ 15] Hoffman argues the Board erred in concluding that he engaged in the unauthorized practice of law during his suspension by assisting his wife who was acting pro se in her visitation litigation with Rem-mick. Numerous documents purportedly prepared by Hoffman’s wife that were filed in the district court and this Court in connection with the visitation litigation were presented to the Board. These documents, which include motions, legal briefs, and a warrant of attachment, do not appear to be the product of a lay person. Hoffman acknowledged that he assisted his wife in the preparation of several of the documents, but insisted he only “helped her with grammar, spelling and syntax.”

[¶ 16] The Board found only that Hoffman “likely engaged” in the unauthorized practice of law during his suspension. Although this Court in In re Larson, 485 N.W.2d 345, 350 (N.D.1992), stated “[a] suspended attorney must refrain from all facets of the practice of law,” that case involved a suspended attorney who was disciplined for drafting a power of attorney for a client, selling real estate for clients, attempting to file a small claims court action on behalf of a client and preparing tax returns for clients during the period of her suspension. The case did not involve a suspended attorney who advised or assisted a member of the family on legal matters. See generally N.D.Code Jud. Conduct Canon 4(G) (“A judge shall not practice law ... [but] may, without compensation, give legal advice to and draft or review documents for a member of the judge’s family”); In re Tady, 2 Cal. State Bar Ct. Rptr. 121, 127 (CaLBar Ct.1992) (“We do not decide, on this review, whether giving legal advice privately to a member of one’s immediate family, without more, constitutes a violation of the prohibition against practicing law while an inactive member of the State Bar, nor whether the authorities cited above regarding judges apply to inactive members”). It is unnecessary for us to decide whether Hoffman engaged in the unauthorized practice of law during his suspension because we conclude Hoffman’s other conduct relied upon by the Board supports its recommendation.

C

[¶ 17] Hoffman argues the Board erred in finding that, although Hoffman testified he recognized the wrongfulness and seriousness of the misconduct for which he was originally suspended, “[h]is statements ... appear to be a recitation of the conclusions of the North Dakota Supreme Court and did not reflect contrition or sincerity.”

[¶ 18] At the hearing, Hoffman testified, “[a]s a lawyer I admit that the facts and conclusions of the Supreme Court in their opinion in this matter are true and correct.” When questioned about his “revelation[s]” regarding the violations of the disciplinary rules leading to his suspension, Hoffman testified about the “true facts” by reciting at length from this Court’s opinion in the disciplinary case. Addressing the Toltzman matter, Hoffman testified he “regret[ed] that I was unable to find the opinion of the general counsel for the State of Alabama which clearly defined that which constitutes personal and substantial involvements,” and “[h]ad I known of this opinion I would have accepted the private reprimand originally issued for this misconduct.” Addressing the Remmick matter, Hoffman testified there was no “evidence of an actual representation of an attorney/client relationship” with his fiancée. Hoffman testified he was “upset” that disciplinary counsel asked him more questions during the reinstatement hearing than were asked at the previous disciplinary hearing. Hoffman also testified that he “resent[ed]” his own “inability to see what reasonably and rationally was justice in this disciplinary proceeding.” The transcript reflects Hoffman’s anger and resentment toward the persons responsible for his suspension. The record as a whole, including Hoffman’s continued harassment of the Remmicks and his continued involvement in the visitation dispute, evidences Hoffman’s lack of understanding of the seriousness of the misconduct resulting in his suspension.

[¶ 19] The Board applied the appropriate legal standards and we agree with its determination that Hoffman does not recognize the wrongfulness and seriousness of his misconduct.

D

[¶ 20] Hoffman asserts the Board erroneously admitted two exhibits in violation of the hearsay rules “and any other rule of evidence that requires reasonable notice and the Due Process clauses of the state and federal constitution[s].” The first exhibit, which Hoffman received three days before the hearing, contained a written statement from Remmick accompanied with copies of Hoffman’s Internet “Profile” entries and legal documents filed in the district court visitation litigation. The second exhibit was a copy of a legal brief filed in this Court supposedly written by Hoffman’s wife for purposes of the visitation litigation.

[¶ 21] Under N.D.R. Lawyer Discipl. 4.5(F), victims of attorney misconduct are entitled to notice of a suspended attorney’s petition for reinstatement and are “entitled to submit comments or other information concerning the petition for reinstatement.” The rules of evidence apply in reinstatement proceedings only “insofar as appropriate.” N.D.R. Lawyer Discipl. 3.5(B). Although disciplinary counsel argues a victim’s entitlement to submit comments and other information should prevail over any contrary rule of evidence, we need not decide the issue here. Even if the rules of evidence applied, “[e]rror may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected.” N.D.R.Ev. 103(a). Moreover, there is no right to redress if a party cannot show prejudice resulting from a constitutionally deficient notice. Morrell v. North Dakota Dept. of Transp., 1999 ND 140, ¶ 11, 598 N.W.2d 111. Hoffman acknowledged that the copies of the entries in the Internet “Profile” were his and addressed the documents in the first exhibit. Hoffman identified the second exhibit as his wife’s brief. Not only has Hoffman failed to specify how any rules of evidence were violated, Hoffman has not shown that a substantial right was adversely affected or that any prejudice resulted from the Board’s admission of these exhibits.

[¶ 22] We conclude the Board properly admitted the challenged exhibits.

Ill

[¶ 23] Upon our consideration of the entire record, we conclude Hoffman has failed to establish by clear and convincing evidence that he should be reinstated to the practice of law in any capacity. We adopt the Board’s recommendation, deny the petition, and order that Hoffman pay the costs of the reinstatement proceeding in the amount of $1,558.10.

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