author: PORITSKY, Judge

text:
    In re the MARRIAGE OF Jean Ann GESKE, f/k/a Jean Ann Marcolina, Petitioner, Respondent, v. Jeffrey Alan MARCOLINA, Appellant.
    No. C9-01-1162.
    Court of Appeals of Minnesota.
    April 2, 2002.

      James Vedder, M. Sue Wilson, Minneapolis, for respondent.
    Timothy D. Lees, Steven T. Hennek, Hennek Klaenhammer and Lees, P.A., Roseville, for appellant.
    Considered and decided by SCHUMACHER, Presiding Judge, HANSON, Judge, and PORITSKY, Judge.
   OPINION

PORITSKY, Judge

In this dissolution case, the appellant-father appeared on a television interview and discussed the on-going custody dispute between him and respondent-mother. In the course of the interview, the names and pictures of the parties’ children were broadcast with father’s consent. Upon mother’s subsequent motion, the district court enjoined the father from further publishing the names or images of the parties’ children and ordered the father to pay attorney fees. The father appeals, arguing that the district court erred in granting the injunction because (a) there was no showing of a real and substantial harm that the injunction would prevent, and the district court’s findings in this connection.. are unsupported by the evidence; (b) the mother failed to establish that the restraint on the father’s freedom of expression was supported by a compelling state interest; and (c) the injunction improperly enjoined the father from disseminating information that is already in the public domain. In addition, the father argues that the district court should not have awarded the mother attorney fees because the record does not support the award. The mother seeks attorney fees on appeal. We modify the district court’s injunction so as not to prohibit Marcolina from disseminating the children’s names, which are in the public domain, but affirm the injunction insofar as it prohibits Mar-colina from disseminating the children’s pictures in the media.

FACTS

The 1987 marriage of Jean Ann Geske and Jeffrey Alan Marcolina produced two daughters. The older girl, A.K.M., is nine years old, and the younger girl, D.C.M., is eight. Geske and Marcolina were divorced in 1996, with Geske being awarded sole legal and physical custody and Marcolina being awarded reasonable and liberal visitation. Due to Marcolina’s abusive, intimidating and controlling behavior, his visitation rights were suspended in February 2000. In November 2000, the district court determined that it was in the younger girl’s best interests to be reunified with Marcolina, but that it was not in the older girl’s best interests to be so reunified.

On February 7, 2001, KSTP-TV aired a “Focus 5 Report” news story discussing several aspects relating to family law and visitation, in which Marcolina was one of the featured fathers. KSTP had contacted Marcolina, and he voluntarily and cooperatively appeared in the story, which, pertinently, consisted of an interview in his home, video footage of unopened presents addressed from “Dad” to the children by first name, and a photograph of the children. The children were only mentioned by first name,-but Marcolina’s name was given in full. Neither Geske nor the children had been given prior notification of the news story by Marcolina, and KSTP-TV never contacted Geske to request permission to use the children’s first names or photographs.

At the time of Marcolina’s interview, the children were staying overnight with a friend. The friend’s parents saw the interview and called Geske, who had not seen the broadcast. After consulting her attorney, and upon advice from her attorney, Geske told the children about the story.

On February 13, 2001, Geske brought a motion before the district court seeking an order restraining Marcolina from publishing the names or images of the children. The district court issued a temporary injunction, and, after oral argument and briefing, the district court issued the following permanent injunction:

Marcolina is immediately restrained from publishing the names (including first names) or images of [the children] on television, radio, in any print publication, on the Internet or through any other form of media.

This injunction was based on the court’s finding that

broadcast of the [children’s] names and/or pictures in the media threatens their stability, emotional well-being and emotional health; it is not in their best interests.

The court considered the historical context of the children’s relationship with their father, including extensive testimony regarding the children’s fear of their father, their opposition to visitation, opinions of therapists and a guardian ad litem, and the district court’s resultant suspension of Marcolina’s visitation. The court referenced the children’s emotional and physical problems as noted in previous orders. The court then found that,

[i]n light of the children’s reaction to the use of their names and pictures in the media, their tenuous emotional state regarding [Marcolina] and the ongoing process for therapeutic reunification with [Marcolina] and the children, the Court finds that future use of their names and images in the media by [Mar-colina] could certainly cause substantial and irreparable injury to the [children’s] emotional well-being.

The court ordered Marcolina to pay reasonable attorney fees of $3,000. The district court later amended this order to provide for findings to support the award of attorney fees based both on Geske’s need and on Marcolina’s conduct. This appeal followed.

ISSUES

I. Did the district court abuse its discretion in determining that, without the injunctive relief ordered, the children would clearly suffer great, irreparable harm that is both real and substantial?

II. Can the best interests of the children serve as a compelling state interest supporting a narrowly tailored prior restraint on speech?

III. Were the children’s names and pictures in the public domain, such that Marcolina has a right to disseminate that information, notwithstanding the harm it may cause the children?

IV. Did the district court abuse its discretion in requiring Marcolina to contribute to Geske’s attorney fees?

ANALYSIS

I.

Marcolina first challenges the granting of the injunction on the ground that there was no showing of a real and substantial harm that would be prevented by the injunction. The granting of an injunction is an action that is committed to the sound discretion of the district court and “will not be disturbed on appeal unless, based upon the whole record, it appears that there has been an abuse of such discretion.” Howe v. Howe, 384 N.W.2d 541, 544 (Minn.App.1986) (quotation omitted). Injunctive relief is limited to clear cases, reasonably free from doubt, and only when necessary to prevent great and irreparable injury. AMF Pinspotters, Inc. v. Harkins Bowling, Inc., 260 Minn. 499, 504, 110 N.W.2d 348, 351 (1961). The threatened injury must be both real and substantial and the burden is on the moving party to establish the material allegations. Id.; Hideaway, Inc. v. Gambit Invs. Inc., 386 N.W.2d 822, 824 (Minn.App.1986). Findings regarding entitlement to injunctive relief will not be set aside unless clearly erroneous. LaValle v. Kulkay, 277 N.W.2d 400, 402 (Minn.1979).

The district court found two types of potential harm: (1) the emotional damage to the children resulting from any future publication by Marcolina, and (2) the detrimental effect that such publication would have on the reunification process. The district court made extensive findings as to the harm the father’s action caused his children. The court took into account the girls’ relationship with their father, including their fear of him, their opposition to his visitation, and the fact that the court had previously suspended his visitation with them. Both girls were in therapy.

The court noted that the girls’ reactions to the broadcast were negative and that both girls suffered embarrassment, emotional upset, and anger. More specifically, the court found that on the day following the broadcast, the younger child, out of embarrassment, requested not to go to school. She did go to school, but was upset when classmates questioned her about the broadcast. She asked her teacher to tell her classmates not to question her about her father. The older girl commented that the father shouldn’t even have the girls’ pictures. The younger daughter stated she no longer wanted to give her father a valentine that she had made at the therapist’s suggestion. She refused to listen to voice messages her father left for her. The court noted the girls’ tenuous emotional state and concluded that any future use of the girls’ names and images in the media by the father could certainly cause substantial and irreparable injury to the girls’ emotional well-being.

Based on the above findings, the court also concluded that the father’s actions negatively affected the reunification process. We conclude that the district court’s findings regarding the need for injunctive relief to preserve the reunification process were not clearly erroneous.

As to the degree of certainty of future harm, the district court found

that future use of their names and images in the media by [Marcolina] could certainly cause substantial and irreparable injury to the [children’s] emotional well-being.

Although the district court’s finding did not state it was absolutely certain that Marcolina’s actions would cause harm to the children, a finding of absolute certainty is not needed. The Supreme Court indicated the standard in AMF Pinspotters when it held that,

[a]n injunction will not issue to prevent an imagined injury which there is no reasonable ground to fear. The threatened injury must be real and substantial.

260 Minn. at 504, 110 N.W.2d at 351 (emphasis added) (citations omitted). This is consistent with the general rule.

The apprehension of injury must be well-grounded, which means that there is a reasonable probability that a real injury for which there is no adequate remedy at law will occur if the injunction is not granted.

42 Am.Jur.2d Injunctions § 32 (2000) (emphasis added) (citations omitted). Here, the district court’s finding that Marcolina’s actions “could certainly cause” the girls harm is equivalent to a reasonable probability and more than an imagined injury. The district court’s finding is legally sufficient.

The record supports the district court’s findings. The district court was familiar with the case and properly took into account the previous proceedings between the parties. The district court referred to its findings regarding the children’s fear and emotional instability, which were in the court’s previous order suspending Marcolina’s visitation rights; no appeal was taken from that order.

II.

Marcolina next argues that the injunction constitutes a prior restraint on speech, which is reviewed “bearing a heavy presumption against its constitutional validity.” Minneapolis Star and Tribune Co. v. Schmidt, 360 N.W.2d 433, 435 (Minn.App.1985) (quotation omitted). “Any exception to this fundamental principle must be necessitated by a compelling state interest, and narrowly tailored to serve that interest.” Id. (quotation omitted).

This court has previously justified infringements of other fundamental rights by finding the best interests of the children to be a compelling state interest. See, e.g., LaChapelle v. Mitten, 607 N.W.2d 151, 163-64 (Minn.App.2000) (best interests of child is compelling state interest justifying infringement on a mother’s fundamental right to travel), review denied (Minn. May, 16, 2000); Sina v. Sina, 402 N.W.2d 573, 576 (Minn.App.1987) (best interests of children took precedence over father’s First Amendment freedom of religion).

In analyzing Marcolina’s First Amendment claim, it is important to note what the district court’s injunction, as modified by this court, prohibits and what it does not prohibit. What it does prohibit is Marcolina’s publishing his children’s pictures in the media. What it does not prohibit are the following: It does not prohibit Marcolina from appearing or speaking in the media if he does not use the children’s pictures. (Geske states that subsequent to the granting of the injunction Marcolina appeared on a radio broadcast involving his relationship with his children, in which he did not use their names. This broadcast was not prohibited by the terms of the injunction.) The injunction does not prohibit Marcolina from using the children’s pictures in communications that are not in the media; thus there is no restriction on his freedom of expression when he speaks to his family, friends, or members of any support or advocacy groups. In addition, the injunction does not restrict anyone other than Marcolina. If his friends or associates decide to speak using the children’s pictures, they will not violate the injunction. This aspect of the injunction follows from the district court’s finding that what hurt the children was that it was their father, and not some third party, who used their names and pictures. Finally, and most importantly, the injunction does not restrict dissemination by the media. If any medium, print or electronic, chooses to use the children’s pictures, it may do so and not violate the injunction.

Marcolina argues that this court has already determined that all prior restraint of children’s identities is unconstitutional. In Schmidt, this court vacated a prior restraint on a newspaper’s publication of public information pertaining to a juvenile court matter where the juvenile court believed that one of the children involved would be traumatized by further publicity. 360 N.W.2d at 435. This court concluded that the potential traumatization of the child by further media exposure was not a compelling state interest. Id.

There are significant differences between Schmidt and the present case. First, in Schmidt the court issued an injunction prohibiting the media from disseminating a broad range of facts, not only the identities and photographs of juveniles involved in the case, but also the identities of witnesses and the parents of either parties and witnesses, and went further to prevent publication of the residence, occupation, place of school attendance or foster placement of “any * * * person or minor.” Id. By contrast, here the order prohibits Marcolina only from using the children’s pictures in the media and is thus considerably narrower in scope. The injunction only prohibits as much speech as necessary to serve the compelling state interest.

Second, in Schmidt this court rejected a critical finding of the district court. There the district court had concluded that further publicity would seriously traumatize one of the children involved. Id. at 435. In so doing, the district court relied on a psychiatrist’s report that recommended “no media coverage of the trial.” Id. On appeal, however, this court noted “a careful reading” of the report indicated that the children’s anxiety was caused primarily by recurrent interrogation and removal from the home, and not publicity. Id. By contrast, in the present case, the district court cited evidence that Marcolina’s involvement in publishing his children’s names and photographs has adversely affected his children and harmed the reunification process, and we see no evidence in the record that compels us to draw factual findings different from those of the district court.

Marcolina cites Minneapolis Star and Tribune Co. v. Lee, 353 N.W.2d 213 (Minn.App.1984) for the proposition that a district court’s motive to protect the child does not rise to the level required to justify prior restraint. Here, too, the differences between present case and the cited case are significant. First, in Lee, the injunction was directed to the media. Id. at 214. The trial judge stated,

I can’t stop people from talking about it but I am going to order that nothing be printed that has any reference to any of the juveniles involved or the juvenile involved or any of the issues that have been raised as a result of this proceeding.

Id. (emphasis added).

At the oral argument, the judge said that he intended the order to apply to all members of the press whether present at the hearing or not. Id. In the present case, as has been noted, the injunction does not restrict the media in any fashion.

Second, the reasons given by the judge in support of the order were a “concern for the child’s welfare,” id., “to protect the child,” id. at 215, and to “have a better relationship to the Houston County Social Services and the parties.” Id. In contrast, the findings of the district court in the present case at not vague; they point out the specific harm that Marcolina’s actions have caused the children.

Although Minnesota has not yet addressed the issue, several other states have noted that the best interests of children can be a compelling state interest justifying a prior restraint of a parent’s right of free speech. See, e.g. Schutz v. Schutz, 581 So.2d 1290, 1292-93 (Fla.1991) (order requiring mother to say positive things about father was in the best interests of the children and, at the very least, in furtherance of “substantial” state interest and not a violation of mother’s First Amendment right to free expression); Dickson v. Dickson, 12 Wash.App. 183, 529 P.2d 476, 479 (1974) (father enjoined from saying that mother was still his wife and that she was insane; court recognized that such statements interfered with children’s well being, and injunction was affirmed, as modified, against father’s assertion of First Amendment rights); cf. Stephanie L. v. Benjamin L., 158 Misc.2d 665, 602 N.Y.S.2d 80, 82-83 (N.Y.1993) (court noted that it has the power to enjoin parents from making statements to children that are not in their best interests, but declined to exercise that power to prohibit father from disclosing to child that her mother had cancer).

Accordingly, we conclude that the injunction, as modified, does not infringe on Marcolina’s right to free speech.

III.

Marcolina next argues that because the information was already in the public domain, he cannot be prohibited from disseminating it. Marcolina states that the information was “contained in an unsealed district court file.” Schmidt, 360 N.W.2d at 435, citing a number of United States Supreme Court cases, holds that once information is in the public domain, its dissemination may not be enjoined. Since the children's names are in the court file, the district court’s injunction must be modified so as not to prohibit Marcolina from disseminating their names, notwithstanding the harm future dissemination may cause his children.

Although it is clear that the children’s names and ages are in the court file, it is not clear whether their pictures are in the file. It would be expected that the names and ages of minor children would be in the file, as they must be pled in the petition. Cf. MinmStat. § 518.10(e) (1996). But it would be unusual for their pictures to be there. In his arguments to both the district court and this court, Marcolina does not differentiate between the children’s names and ages on one hand and their pictures, on the other. Marcolina simply alleges that the “information” was in the file. At the hearing before this court, mother’s counsel agreed that the children’s names and ages were in the court file, but challenged the assertion that pictures were in the file. In response, father’s counsel stated that the information was “already out there.” Thus, it is not clear whether the children’s pictures are in the file, and if so, under what circumstances they were filed. Perhaps because the question of what was in the file was not presented to the district court, the court did not make a finding on this question. Since the record on appeal does not establish that the children’s pictures are in the court file and hence in the public domain, and on the basis of the district court’s finding that Marcolina’s use of the children’s pictures was harmful to the children, we affirm the injunction insofar as it prohibits Marcoli-na’s from disseminating the children’s pictures in the media.

IV.

Marcolina argues that the district court’s award of fees under MinmStat. § 518.14 (2000) was improper. An award of attorney fees is a decision well within the district court’s discretion and will not be disturbed absent a clear abuse of discretion. Crosby v. Crosby, 587 N.W.2d 292, 298 (Minn.App.1998), review denied (Minn. Feb. 18, 1999).

There are two bases for the award of attorney fees under Minn.Stat. § 518.14, subd. 1. First, attorney fees may be awarded on the basis of a party’s need if the district court finds that (1) the fees are necessary for the good-faith assertion of the party’s rights; (2) the party from whom fees, costs, and disbursements are sought has the means to pay them; and (3) the party to whom fees, costs, and disbursements are awarded does not have the means to pay them. Id. Alternatively, the district court may award attorney fees against a party who “unreasonably contributes to the length or expense of the proceeding.” Id.

Need-based Fees

Marcolina first argues that the underlying proceeding was not a good-faith assertion of rights. In making this argument, Marcolina seems to rely on the fact that no Minnesota law was found that explicitly supported Geske’s requested relief. The lack of explicit law does not render her petition in bad faith.

Marcolina next argues that the information on which the district court based its findings with regard to the second and third elements was financial data from 1998 and 1999 and was therefore stale. But the district court took into account information concerning the parties’ financial circumstances since the 1999 hearing. Moreover, the district court judge was familiar with the history of the case and the parties’ financial circumstances, and it was proper for the court to take those facts into account. See Gully v. Gully, 599 N.W.2d, 814, 826 (Minn.1999). We conclude that it was proper for the district court to award need-based fees.

Conduct-based Fees

The district court alternatively awarded fees on the basis that Marcolina may have acted in bad faith, caused further emotional difficulties for the children by divulging the girls’ names and pictures on television for broadcast without notice to Geske, Geske’s counsel, the Court, or any family therapist involved in the case, and then choosing to

undertake lengthy first amendment-based litigation on the question, not of his right to broadcast, discuss or disseminate information regarding his visitation case, but of his “right” to broadcast the names and faces of his children in the media.

In this connection, however, for the court to award attorney fees the conduct must be within the litigation; conduct not directly in the litigation process is not a basis for an award. Geske v. Marcolina, 624 N.W.2d 813, 819 (Minn.App.2001). It does not appear that Marcolina’s conduct within the current injunction proceeding unreasonably contributed to the length or expense of the proceeding. Although Mar-colina’s conduct is not a basis for a fee award, the district court’s award of fees based on Geske’s need is within the court’s discretion and is affirmed.

Geske has made a motion for attorney fees on appeal. The same analysis that the district court applied to her request for fees in district court applies to her request for fees on appeal. Geske’s attorney has submitted an affidavit detailing $8,255 in attorney fees in connection with the present appeal. We take into account (1) the district court’s findings and ruling on the issue of fees in the district court, and (2) the submissions of the parties to this court on the issue of fees on appeal. Based on the relative financial positions of the parties, pursuant to Minn.Stat. § 518.14, subd. 1, we make a needs-based award to Geske of $4,000 as attorney fees on appeal.

DECISION

The district court’s ruling issuing the injunction is modified to allow appellant to disseminate the names of his daughters in the media. In all other respects, the order of the district court is affirmed.

Affirmed as modified; motion granted.

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

      . The order suspending Marcolina's visitation noted that the guardian ad litem could not persuade the children to see their father. The older girl had recurring physical symptoms, including stomachaches, vomiting, trembling, and intense crying associated with visitation. According to her therapist, the child was displaying regressive behavior and anxiety and both children were afraid of their father. The court found that continued visitation would cause the children harm. The court noted that several witnesses testified that the children appeared to show genuine affection for their father and that this discrepancy was "troubling." The court concluded that Marco-lina’s actions, and not Geske's actions, were causing the children’s fear of Marcolina. Marcolina did not challenge these findings on appeal.

      . At oral argument, Marcolina argued that the injunction prevents him from using the Internet to circulate the children’s names and pictures in obviously private communications, such as to his family, and Geske agreed that the injunction could be modified to clarify that Marcolina is not enjoined from circulating the children's names and pictures on the Internet in private communications, but that he would be prohibited from circulating such information to the public at large, such as but not limited to, on a web site. Marcolina never expressed this concern at the district court level, and we see no reason why he would be prohibited from making an appropriate motion to the district court.


source: Caselaw Access Project

author: GORDON W. SHUMAKER, Judge.

license: Public Domain

text:
    STATE of Minnesota, Respondent, v. Ruben Perez TLAPA, Appellant.
    No. C6-01-1393.
    Court of Appeals of Minnesota.
    April 9, 2002.

      Mike Hatch, Attorney General, James B. Early, Assistant Attorney General, St. Paul; and Douglas J. Christian, Le Sueur County Attorney, Le Center, for respondent.
    John M. Stuart, State Public Defender, Sharon E. Jacks, Assistant State Public Defender, Minneapolis, for appellant.
    Considered and decided by WILLIS, Presiding Judge, SHUMAKER, Judge, and PARKER, Judge.

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

   OPINION

GORDON W. SHUMAKER, Judge.

Appellant was charged with sex crimes punishable by incarceration. His attorney stated that appellant waived his right to trial by jury. The district court accepted the waiver, although appellant did not personally waive that right either in writing or orally on the record in open court. Therefore, the district court failed to comply with the jury-trial waiver requirement of Minn. R.Crim. P. 26.01, subd. l(2)(a), and the waiver is invalid. We reverse and remand.

FACTS

Appellant Ruben Perez Tlapa pleaded not guilty to charges that he engaged in criminal sexual conduct with the eight-year-old daughter of the woman he was dating. These charges were offenses punishable by incarceration.

The case was called for trial on March 19, 2001. Before the trial began, Tlapa’s attorney noted that the matter was originally scheduled for a jury trial. There was no further discussion of the jury trial issue at that time, and the record contains no waiver at that point, either by Tlapa or his attorney, of Tlapa’s right to a jury trial. A Spanish interpreter translated the proceedings for Tlapa and the matter was tried to the court without a jury.

After all testimony by the state’s first witness, the investigating police officer, had been completed, the judge asked Tla-pa’s attorney about the issue of jury trial waiver:

THE COURT: At this time, Mr. Cowell, I think we should place on the record that your client has waived his jury trial rights; is that right?
MR. COWELL: Yes, Your Honor.

Tlapa’s attorney noted for the record his discussion with his client about possible sentences and then returned to the jury-trial waiver:

MR. COWELL: And he did waive the jury trial, as I indicated.
I did go over his rights with regard to a jury trial. I explained to him what the two choices were, and he chose to have a court trial with Your Honor.
THE COURT: Okay.

Presumably, Tlapa was present during this exchange and the interpreter was translating for him. But at no time was he asked to state his waiver of a jury trial, to acknowledge that he had in fact waived that right, or even to acquiesce in his attorney’s statement of the waiver.

At the conclusion of the bench trial, the district court found Tlapa guilty of three counts of criminal sexual conduct. Tlapa appeals, contending that he did not knowingly, intelligently, and voluntarily waive his right to a jury trial.

ISSUE

In a criminal prosecution for crimes punishable by incarceration, the defense attorney stated that the defendant waived his right to trial by jury. The defendant did not personally waive that right, nor did he acknowledge such waiver or acquiesce in his attorney’s statement of the waiver. Was the waiver of jury trial valid?

ANALYSIS

The single issue on appeal is controlled by Minn. R.Crim. P. 26.01, subd. 1(2)(a). We review criminal rule interpretations de novo. State v. Nerz, 587 N.W.2d 23, 24-25 (Minn.1998).

Because Tlapa was charged with crimes punishable by incarceration, he had a right to be tried by a jury. Minn. R.Crim. P. 26.01, subd. 1(1)(a); State v. Sandmoen, 390 N.W.2d 419, 423 (Minn.App.1986). However, Minnesota law permits a defendant to waive Ms right to a jury trial and to consent instead to a bench trial. Sandmoen, 390 N.W.2d at 423. The controlling rule requires that the defendant personally waive his right to jury trial:

The defendant, with the approval of the court may waive jury trial provided the defendant does so personally in writing or orally upon the record in open court, after being advised by the court of the right to trial by jury and after having had an opportunity to consult with counsel.

Minn. R. Crim P. 26.01, subd. l(2)(a).

We have held this rule to be of constitutional significance:

American constitutional law, as well as the common law, places a premium on the jury trial. Rule 26.01 reflects this emphasis; the rule clearly requires a jury trial in the absence of defendant’s intelligent and recorded waiver.

State, City of Tracy v. Neuman, 392 N.W.2d 706, 708-09 (Minn.App.1986) (citation omitted). This rule is clear and plain in its meaning. Id.

We have held that the rule is easy to apply:

The waiver requirement of Rule 26.01 mandates only a relatively painless and simple procedure to protect a basic right. Just as the police are required to advise an arrested individual of his rights, so must the court comply with Minn. R.Crim. P. 26.01.

Id. at 709. Finally, we have held that the rule must be strictly construed. Id.; State v. Ulland, 357 N.W.2d 346, 347 (Minn.App.1984). “As we view the rule, strict compliance is required in order to assure that the waiver is voluntarily and intelligently made.” Sandmoen, 390 N.W.2d at 423-24 (citing State v. Pietraszewski, 283 N.W.2d 887, 889-90 (Minn.1979)).

This record shows only that Tlapa’s attorney spoke with Tlapa about having a jury trial or a bench trial. The record does not show that Tlapa personally waived his right to trial by jury, or that the court advised Tlapa of that right. Thus, there was no compliance with rule 26.01, subd. l(2)(a), and Tlapa’s jury trial waiver was invalid.

This case also raises an additional concern about waivers from defendants who need to communicate through interpreters. Although we do not doubt that Tlapa’s attorney discussed with him a choice between a bench trial and a jury trial, those discussions were private, and we can only assume that an interpreter was available to assist Tlapa in understanding and appreciating his attorney’s explanation. When rule 26.01, subd. l(2)(a), is followed, our concern is likely to be obviated.

DECISION

Because appellant’s jury trial waiver did not comply with Minn. R.Crim. P. 26.01, subd. l(2)(a), the waiver was invalid.

Reversed and remanded.


author: KLAPHAKE, Judge.

text:
    In re the CONSERVATORSHIP OF Pauline MILLER, Conservatee.
    No. C4-01-1697.
    Court of Appeals of Minnesota.
    April 16, 2002.

      Mary Ferris Jensen, Minneapolis, MN, attorney pro se.
    Mark A. Ostrem, Rochester, MN, for respondent Conservatee.
    Raymond F. Schmitz, Olmsted County Attorney, Brent Eliot Walz, Assistant County Attorney, Rochester, MN, for respondent county.
    Considered and decided by RANDALL, Presiding Judge, KLAPHAKE, Judge, and HUSPENI, Judge.

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

   OPINION

KLAPHAKE, Judge.

After a conservator retained appellant, attorney Mary Ferris Jensen, to defend against a county’s petition to appoint a successor conservator, the district court denied appellant’s request for attorney fees and costs to be paid from the conser-vatee’s estate. Appellant contends that the district court misapplied Minn.Stat. § 525.703 (2000), regarding the types of services for which attorney fees may be recovered in conservatorships, and that the court erred in failing to award fees under Minn.Stat. § 525.515 (2000), a more general provision controlling the award of attorney fees in probate proceedings. Because we conclude that Minn.Stat. § 525.703 applies here and mandates an award of reasonable attorney fees, we reverse and remand. Given this disposition, we deny respondent’s motion for attorney fees on appeal.

FACTS

On November 2, 1999, the district court appointed Vicki Berg as conservator over the person and estate of respondent Pauline Miller. Miller had begun to suffer from dementia and depression and was eventually moved to an assisted living care facility. During the year following Berg’s appointment, Miller’s family became dissatisfied with her services, claiming that Berg was not fully aware of Miller’s medical conditions, failed to properly handle Miller’s finances or property, and was abrasive in her communications with the family.

On Miller’s behalf and based on her status as a vulnerable adult, Olmstead County petitioned for appointment of a successor conservator on October 5, 2000. Consistent with the parties’ wishes, the district court appointed social worker Mary McGurran as an expert to evaluate the merits of removing Berg as conservator. Berg retained appellant to represent her in connection with the petition to appoint a successor conservator. After conducting an investigation into the matter, McGurran recommended that Berg resign, although her report did not indicate any impropriety in Berg’s actions as conservator. Pursuant to a May 31, 2001 court order mandating her resignation, Berg resigned as conservator.

As was contemplated in the May 31 order, appellant petitioned for an award of $4,155.25 in attorney fees and $59.25 in costs from respondent’s estate for services that appellant had provided to Berg in defending against the petition to appoint a successor conservator. The district court declined to award attorney fees to appellant, concluding that a fee award was not authorized by Minn.Stat. § 525.703, subd. 2 (2000), which enumerates three bases for recovery of attorney fees from a conserva-tee’s estate. The court also found that Minn.Stat. § 525.515 (2000), a more general provision providing for attorney fees in probate proceedings, did not apply under the circumstances of this case.

ISSUE

Did the district court err in denying appellant’s petition for attorney fees incurred in defending Berg against a petition to appoint a successor conservator?

ANALYSIS

An appellate court reviews a district court decision on whether to award attorney fees for abuse of the district court’s discretion. In re Conservatorship of Malecha, 607 N.W.2d 449, 451 (Minn.App.2000). An appellate court reviews de novo a district court’s interpretation of a statute providing for an award of attorney fees. Id. Unless provided for by statute or contract, a party generally may not recover attorney fees from another party. Ly v. Nystrom, 615 N.W.2d 302, 314 (Minn.2000).

1. Minn.Stat. § 525.703, subd. 2

Appellant contends that the district court erred in concluding that she was not entitled to attorney fees for representing Berg in the dispute over whether to appoint a successor conservator. Minn.Stat. § 525.703, subd. 2. (2000) provides that an attorney

rendering necessary services with regard to the appointment of a guardian or conservator, the administration of the ward’s or eonservatee’s estate or personal affairs or the restoration of that person’s capacity, shall be entitled to reasonable compensation from the estate of the ward or conservatee * * *. When the court determines that other necessary services, have been provided for the benefit of the ward or conservatee by a lawyer * * *, the court inay order reasonable fees to be paid from the estate of the ward or conservatee * * *. If, however, the court determines that a petitioner, guardian or conservator has not acted in good faith, the court shall order some or all of the fees or costs incurred in the proceedings to be borne by the petitioner, guardian, or conservator not.acting in good faith.

In declining to award attorney fees to appellant, the district court found that the fees were not for necessary services pertaining to Berg’s appointment, ■ were not incurred in the administration of respondent’s estate or personal affairs, and were not incurred to restore respondent to capacity. The court concluded, “The contractual obligation for attorney’s fees was strictly between the conservator and the petitioner and should not be borne by [respondent’s] estate.” '

While there is neat logic to the district court’s reasoning, we disagree with the court’s narrow interpretation of Minn. Stat. § 525.703 on several grounds. First, the services provided by appellant involved Berg’s continuing appointment as a conservator and thus fell within the ambit of reimbursable services. Although appellant was hired to defend, rather than initiate, Berg’s appointment, her services nonetheless were necessary to Berg’s continued appointment. In addition, benefit to the conservatee is the hallmark of the reimbursable services enumerated in this statute, and resolution of the underlying dispute between respondent’s heirs and Berg benefited the estate by adding finality to the matter.

Further, because Minnesota courts have a strong interest in the proper administration of justice, we prefer that disputes involving the propriety of a conservator’s continuing appointment are resolved only after proper investigation, development of factual information, and court involvement. A denial of fees here might have a chilling effect on other conservators’ willingness to continue as conservators, even in the best of circumstances. Any conservator who might attempt to improperly obtain attorney fees is effectively prevented from doing so, given the good-faith requirement in the statute and the discretion of the district court to determine a reasonable amount of fees.

Moreover, we note that corporations often act as conservators and must be represented by an attorney in any court appearance. See Nicollet Restoration, Inc. v. Turnham, 486 N.W.2d 753, 754 (Minn.1992) (Minnesota follows common law rule that corporation must be represented by counsel to appear in court). Thus, our interpretation -of Minn.Stat. § 525.703 encourages uniformity and fairness in the law by allowing both corporate and personal conservators to be reimbursed for their necessary and reasonable attorney fees.

Finally, our interpretation of Minn. Stat. § 525.703 is consistent with analogous statutes that allow an attorney providing services to one party to be reimbursed by another party for those services. See, e.g., Minn.Stat. § 524.3-720 (2000) (attorney fees of personal representative acting in good faith, even in defense of representative status, paid for from estate).

We therefore reverse the district court’s order denying appellant’s attorney fees request. Because the district court did not find that Berg was acting in bad faith in defending against the successor petition and because we do not believe that the record would sustain such a finding, we remand solely for a determination of the reasonable amount of attorney fees to be awarded to appellant.

2. Minn.Stat. § 525.515

Appellant also claims that Minn. Stat. § 525.515 (2000) provides a statutory basis for determining what amount constitutes “reasonable compensation” for an attorney. Section 525.515(a) allows for a “just and reasonable” award of attorney fees “out of the estate” where the attorney is “performing services for the estate at the instance of the * * * conservator.” The statute applies “to all probate proceedings.” Id. In declining to award attorney fees under this statute, the district court stated, “this statutory section relates solely to probate proceedings and is not appropriate for analysis of the instant situation.” It is apparent from reading other provisions of this statute that the attorney fees contemplated are solely fees related to services provided to a testator in probate proceedings. See Minn.Stat. § 525.515(b) (2000) (attorney fees determined by agreement between attorney and “testator” or by factors that provide basis for determining reasonable fee). Here, the conservator, not the testator, hired the attorney. Minn.Stat. § 525.515 does not specifically cover payment of attorney fees incurred by an attorney acting on behalf of a conservator, while Minn.Stat. § 525.703, subd. 2, does specifically contemplate such an arrangement. Thus, the specific provisions of Minn.Stat. § 525.703, subd. 2, control whether appellant is entitled to attorney fees in this case. See Minn.Stat. § 645.26, subd. 1 (2000) (particular or special provisions in statute given effect over conflicting general provision in another statute). The district court therefore did not err in its interpretation of Minn.Stat. § 525.515.

Finally, respondent moves for attorney fees on appeal, asserting that the appeal “is without merit.” Because appellant raised valid arguments and we are reversing, we deny respondent’s motion for attorney fees on appeal.

DECISION

The district court erred in declining to award appellant a reasonable amount of attorney fees from respondent’s estate for the necessary services appellant provided to the conservator in defending a challenge to her conservatorship. Respondent’s motion for attorney fees on appeal is denied.

Reversed and remanded; motion denied.

      . The district court noted in its memorandum of law attached to its order denying attorney fees that "[a]rguably” it "could find that the conservator, in contesting the successor conservator petition acted in bad faith and not in the best interests of the conservatee.” This language may resemble a finding, but it is hypothetical and amounts to non-binding dicta. See Hahn v. Tri-Line Farmers Co-op, 478 N.W.2d 515, 521 (Minn.App.1991), review denied (Minn. Jan. 27, 1992).


author: DORIS OHLSEN HUSPENI, Judge.

text:
    CARGILL, INCORPORATED, Appellant, v. EVANSTON INSURANCE COMPANY, Respondent.
    No. C1-01-1589.
    Court of Appeals of Minnesota.
    April 16, 2002.

      Thomas C. Mielenhausen, Christopher L. Lynch, Lindquist & Vennum, P.L.L.P., St. Paul, for appellant.
    Richard P. Mahoney, Victor E. Lund, Mahoney, Dougherty and Mahoney, P.A., Minneapolis, and Jonathan S. Reed, Adam D. Krauss, Traub Eglin Lieberman Straus, Edison, NJ, pro hac vice for respondent.
    Considered and decided by RANDALL, Presiding Judge, KLAPHAKE, Judge, and DORIS OHLSEN HUSPENI, Judge.
   OPINION

DORIS OHLSEN HUSPENI, Judge.

Appellant insured seeks reversal of summary judgment awarded to respondent insurer, and argues that the district court erred in determining that (1) a claim was not made by appellant according to the terms of the insurance policy, (2) notice of the claim was not properly given to respondent by appellant, (3) the other-insurance clause in the policy prevents appellant from qualifying for coverage, and (4) the owned-property exclusion in the policy prevents appellant from qualifying for coverage. Because the district court erred in its application of the law to three of the grounds upon which it granted summary judgment and inappropriately made a factual determination in regard to the fourth ground, we reverse and remand in part.

FACTS

In February 1979, appellant Cargill, Inc. (Cargill), purchased Stevens Enterprises, Inc. (Stevens), a business located in Dawson, Georgia, that manufactured pesticides for peanut and cotton farmers. After conducting the pesticide production business for one year, Cargill ceased its operations on the property and permanently turned the Stevens site into a storage facility.

In June 1984, Cargill renewed an environmental impairment liability policy (EIL policy) with respondent Evanston Insurance Company (Evanston); Cargill had been an insured of Evanston since 1980. The renewal policy period was one year, ending June 1, 1985. Later in 1984, after receiving an anonymous tip that large amounts of DDT had been buried at the site 20 to 30 years prior, the Georgia Department of Natural Resources (GDNR) notified Cargill that it was going to conduct an investigation on the Stevens site. In December 1984, a GDNR representative collected soil samples to test for contamination. In January 1985, the GDNR wrote to Charles Westmoreland, Vice President of the Stevens facility, telling him “significant pesticide contamination exists in the soil [at the Stevens facility].” The GDNR stated further,

[t]he Remedial Actions Unit of the Georgia Environmental Protection Division will contact you shortly regarding measures that will be necessary to clean up the site in accordance with the Georgia Hazardous Waste Management Act.

In response to these assertions, Cargill began to conduct studies on its own, assessing contamination levels in the soil at the Stevens site.

The next contact between Cargill and the GDNR was on April 18,1985, when the GDNR sent another letter to Charles Westmoreland reiterating that contamination had been found on the site, and requesting that a “thorough remedial investigation be conducted by [Cargill] at the site.” The letter stated further that the purpose of the investigation was to “determine the nature and extent of the contamination” and “the possible impact any migration of these contaminants may have on the local population and environment through the air, surface-water and groundwater.” At the direction of this letter, a meeting between Cargill and GDNR representatives was held in June 1985 to discuss details of the remedial investigation. At this meeting, the GDNR directed Car-gill to hire a consultant to conduct a study of the site, and indicated that no public assistance would be available to fund the study. Thus, Cargill was expected to cover study expenses on its own.

In September 1985, Cargill retained Applied Engineering & Science (AES) to conduct a remedial study at the site. In March 1987, AES reported that the Stevens site had widespread, but not substantially dangerous, contamination. AES noted that although the water in the creek adjacent to the site (Brantley Creek) was not contaminated, the sediments in the creek at the site, upstream, and downstream were contaminated at low levels. AES also reported that the surface soil was contaminated, the subsurface soil was for the most part unaffected, the upper groundwater had not been significantly affected, and the lower groundwater was not threatened. Despite these generally favorable results, AES maintained that the site

represented] a potential environmental and human health threat as surface contamination is exposed to the weather elements including winds and rains which can physically relocate contaminants offsite.

AES suggested several remedial options for Cargill to choose from, ranging in cost from roughly $400,000 to $1.1 million. The GDNR reviewed AES’s report and expressed concern stating that the recommendations needed further clarification to ensure that a permanent environmental solution would be achieved at the Stevens site. To further this goal, the GDNR requested additional studies.

On November 24, 1987, Cargill notified Evanston that the GDNR had identified Cargill as the responsible party regarding a remedial investigation at the Stevens site and requested coverage for the claim because it arose during the EIL 1984-1985 policy period. Evanston responded in January 1988, accepting Cargill’s submission under a fall reservation of rights and alleging it was impossible to determine whether a claim had been made during the policy period. With no acceptance or denial of coverage from Evanston, Cargill moved forward with its remedial work, keeping Evanston apprised of the events transpiring at the Stevens site over the years preceding this litigation.

In March 1997, Evanston notified Car-gill that it did not believe Cargill’s problems at the Stevens site rose to the level of an insurable claim within the EIL policy period. Evanston also alleged that Cargill did not provide timely notice of a claim under the EIL policy when it waited until 1987 to officially notify Evanston. Cargill continued to update Evanston; Evanston would respond by requesting further proof of a valid claim and by reasserting its reservation of rights.

Cargill brought a declaratory judgment action. After extensive discovery, both parties moved for summary judgment. Evanston’s ten separate legal arguments addressed conditions precedent to coverage, policy exclusions, and the equitable doctrine of laches. The district court rejected six of Evanston’s arguments, but granted summary judgment for Evanston on the grounds that (1) Cargill failed to prove a valid claim was made during the policy period, (2) Cargill failed to give timely notice to Evanston, (3) Evanston’s policy excluded coverage because Cargill had other insurance policies it needed to exhaust before relying on Evanston, and (4) Cargill was excluded from coverage due to the fact that the contamination was solely contained within its own property. This appeal resulted.

During pendency of this appeal, Evans-ton moved this court to strike certain documents from Cargill’s appendix, claiming they are not properly part of the record on appeal. Cargill opposes this motion.

ISSUES

1. Are Cargill’s arguments on appeal properly before this court?

2. Did Cargill make a valid claim according to the terms of the EIL policy?

3. Was Cargill's notice of a claim to Evanston timely, despite the fact that it occurred nearly three years after the alleged claim was made?

4. Does the EIL policy’s other-insurance clause prevent Cargill from establishing coverage from Evanston?

5. Does the owned-property exclusion prevent Cargill from establishing coverage from Evanston?

6. Should certain documents in Car-gill’s appendix be stricken from the appellate record?

ANALYSIS

Summary judgment is appropriate when the moving party demonstrates that the pleadings, depositions, answers to interrogatories, admissions, and affidavits demonstrate that there is no genuine issue of any material fact and that either party is entitled to judgment as a matter of law. Minn. R. Civ. P. 56.03; see also Thiele v. Stich, 425 N.W.2d 580, 583 (Minn.1988) (placing the burden of demonstrating that no genuine issue of material fact exists for trial on the moving party). On appeal from summary judgment, this court considers whether there are any genuine issues of material fact and whether the district court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990). No genuine issue of material fact exists when, based on the record, a rational trier of fact could not find for the nonmoving party. DLH, Inc. v. Russ, 566 N.W.2d 60, 69 (Minn.1997). The party opposing summary judgment may not only rest on mere averments; a genuine issue for trial must be established by substantial evidence. Id. at 69-71. This court views the evidence in the light most favorable to the party against whom summary judgment was granted. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn.1993).

I.

We address initially Evanston’s allegation that some of Cargill’s arguments on appeal were not raised at the district court. Therefore, argues Evanston, pursuant to the holding in Thiele, 425 N.W.2d at 582, Cargill should be prevented from raising these arguments in this court. We find no merit in Evanston’s allegation. An examination of the record establishes that all arguments raised by Cargill on appeal were raised in at least one of the several motions Cargill brought during the proceedings before the district court. Consequently, all challenged arguments are properly before this court for consideration on appeal.

II.

Cargill first challenges the district court’s determination that no valid claim for coverage was made within the time limits of Evanston’s EIL policy period. Evanston’s policy defines a “claim” as “a' demand received by the Insured for money or services.” The district court found that because the GDNR’s communications with Cargill from December 1984 to April 1985 were only requests for action, there was no demand for money or services made on the insured within the policy period and, therefore, there was no claim. We disagree.

First, while the tone of the correspondence between the GDNR and Cargill was, indeed, conciliatory, the statutory constraints under which the GDNR must operate mandate a conciliatory tone. Ga. Code Ann. § 12-8-71(a) (2000) requires that the GDNR remedy violations of the Georgia Hazardous Waste Management Act (GHWMA) through “conference, conciliation, and persuasion.” Only if these methods fail is the GDNR authorized to issue orders to the offending party, directing the necessary remedial action. Ga. Code. Ann. § 12-8-71(a). While the notifications sent to Cargill did not contain any absolute deadlines within which performance must occur, nor any direct orders for cleanup, the letters did make it clear that remedial investigations needed to be conducted at Cargill’s expense. The letters also unequivocally stated that there was contamination on the site requiring the enactment of cleanup measures. Our review of the letters sent to Cargill by GDNR persuades us that the only uncertainty conveyed concerns the logistics of the cleanup, i.e., when and how, not whether the cleanup was required.

There is no indication that Cargill was free to ignore the requests of GDNR. Although, when read literally, the syntax of the communications did not take the form of demands, their import, when read in the context of the GHWMA, was undeniably a demand for action. Evanston’s reliance on a technicality of its policy language to require that a clear “demand for money or services” be stated is unreasonable, in view of the inability of GDNR, as a matter of law, to fulfill those semantic requirements when its first notice of contamination was given.

Minnesota caselaw guides our decision on whether the letters from GDNR constituted a “demand for money or services” under the Evanston policy. In SCSC Corp. v. Allied Mut. Ins. Co., 536 N.W.2d 305, 315 (Minn.1995), the supreme court found that a “Request for Information” from the insured can be considered a “suit” triggering the insurer’s duty to defend. The court reasoned that because it had determined in an earlier case, Minn. Mining & Mfg. Co. v. Travelers Indem. Co., 457 N.W.2d 175 (Minn.1990), that covered “damages” in an insurance policy included costs associated with responding to state and federal environmental agencies, it could logically extend this holding to stand for the proposition that a “Request for Information” made by an environmental agency constituted a “suit” for insur-anee coverage purposes. SCSC, 536 N.W.2d at 315.

Evanston attempts to distinguish 3M and SCSC on the ground that those cases dealt with commercial general liability policies (CGL policies), whereas Cargill’s policy was an EIL policy. While Evanston’s assertion of a difference between the policies may be correct, we are aware of no basis for concluding that difference is dis-positive. Arguably, the fact that the policy at issue here is designed specifically for environmental liability lends support to our reliance upon 3M and SCSC for guidance. It is, we believe, a proper application of the rationale of 3M and SCSC to hold in this case that conciliatory letters from an environmental agency may constitute a claim or demand triggering insurance coverage, when that agency is required by law to use a conciliatory tone in its communication. We believe a contrary result on this issue would arguably cause reluctance on the part of insureds to cooperate with environmental agencies, lest the opportunity to obtain coverage from insurers would be deemed waived because action was not demanded according to the exact language of the policy.

We reverse the district court’s determination that there was no claim made against Cargill during the 1984-1985 Ev-anston policy period, and conclude as a matter of law that correspondence from GDNR to Cargill during the policy period constituted a claim.

III.

Cargill next challenges the determination of the district court that notification of a claim was not given to Evanston in a timely manner. The district court defined the EIL policy as a claims-made policy that required Cargill to give notice to Evanston as soon as practicable. The court relied on caselaw and Black’s Legal Dictionary to determine that “as soon as practicable” means as soon as is performable or feasible. From this definition, the court concluded that Cargill’s decision to wait longer than two years to notify Ev-anston after being contacted by the GDNR was unreasonable. The inference we draw from the district court’s decision is that no fact-finder could reasonably find that Car-gill provided notice to Evanston as soon as practicable. See DLH, Inc., 566 N.W.2d at 69 (stating that summary judgment is appropriate when a rational trier of fact could not find for the nonmoving party).

Generally, whether the notice was given as soon as practicable is a fact-dependent question for a jury to determine. See St. Paul Fire & Marine Ins. Co. v. Wabash Fire & Cas. Ins. Co., 264 F.Supp. 637, 642-43 (D.Minn.1967) (stating that what constitutes notice “as soon as practicable” is a determination to be made taking into account all the facts and cir-eumstanees of the particular case); Williams v. Cass-Crow Wing Co-op. Ass’n, 224 Minn. 275, 283, 28 N.W.2d 646, 650-51 (1947) (immediate notice requirement has same standard). A court may grant summary judgment, however, when there is no genuine issue of material fact. DLH, Inc., 566 N.W.2d at 71. There is no genuine issue of material fact when the nonmoving party presents evidence creating only a metaphysical doubt as to a factual issue or the evidence is not sufficiently probative to permit reasonable persons to draw different conclusions. Id.

In this case, Cargill claims it waited as long as it did to notify Evanston due to the presence of a $1 million deductible provision in the Evanston policy. Cargill argues that it would have been pointless to notify Evanston at an earlier time because Cargill’s costs in relation to the cleanup had not exceeded the $1 million limit. This court makes no assessment regarding the ultimate success of this argument. We conclude, however, that it would not be wholly unreasonable for a fact-finder to determine that, under the circumstances, it was practical for Cargill to wait until the $1 million deductible was exceeded. Car-gill should have been permitted to make its argument to a fact-finder.

While Cargill argues that the timing of notice is irrelevant if Evanston cannot establish that it was prejudiced by any delay, we agree with the district court that there is no merit to this argument. Ev-anston should not be required to make a showing of prejudice. If the “notice of loss * * * is a condition precedent of liability under the insurance contract, * * * noncompliance with that provision is fatal to recovery.” Sterling State Bank v. Va. Sur. Co., 285 Minn. 348, 354-55, 173 N.W.2d 342, 346 (1969). The language of the Evanston policy unambiguously states that

[a]s a condition precedent to his right to the protection afforded by this policy, the Insured shall, as soon as practicable, give to the Company written notice * * * of any claim made against him.

(Emphasis added.) Therefore, on remand, the fact-finder shall not consider whether the timing of Cargill’s notice prejudiced Evanston.

We conclude that summary judgment was inappropriately granted on the issue of notice and remand this issue to the district court for resolution by the fact-finder.

IV.

In its third argument, Cargill challenges (1) the district court’s decision that the other-insurance clause in the Evanston policy compelled Cargill to seek coverage from its other insurance providers before turning to Evanston, and (2) the district court’s conclusion that another insurance company had offered to defend Cargill, but Cargill had refused.

Turning to the first basis relied upon by the district court in deciding the other-insurance issue, i.e., that Evanston’s insurance was excess, we note that the court appeared to look no further than the language of the clause itself, which provides:

This insurance shall be in excess of the amount of the applicable deductible of this policy and any other valid and collectible insurance available to the Insured whether such other insurance is stated to be primary, contributory, excess, contingent or otherwise, unless such other insurance is written only as a specific excess insurance over the limits of liability provided in this policy.

(Emphasis added.) Inclusion of “excess” language in a policy, however, does not automatically qualify that policy as excess. Interstate Fire & Cas. Co. v. Auto-Owners Ins. Co., 433 N.W.2d 82, 86 (Minn.1988). In Interstate, the supreme court found that despite having a pro rata other-insurance clause in its policy, appellant insurance company’s policy was not an excess/umbrella one in relation to respondent insurance company because appellant did not specifically name respondent insurance company as an underlying insurer in its other-insurance provision. Id. Consequently, the relationship between the two insurance companies was never specifically defined; further analysis was necessary to determine which policy provided primary coverage. Id. Similarly, in the present case, Evanston’s other-insurance clause does not name any of Cargill’s other policies as underlying insurance that must be exhausted prior to Evanston’s involvement. Therefore, there is no specifically defined relationship between the Evanston policy and any of Cargill’s other policies. Further analysis is needed to determine whether Evanston is a primary insurer for Cargill’s claims at the Dawson site, and we must remand this issue to the district court.

In conformance with Minnesota law, priority among insurance policies is not to be determined by the presence or absence of other-insurance clauses, but by an analysis of the function and intent of the policies. See, e.g., Bettenburg v. Employers Liab. Assurance Corp., 350 F.Supp. 873, 876 (D.Minn.1972). Minnesota has used two tests for this purpose: the “elosest-to-the-risk” test as in Interstate, 433 N.W.2d at 86, and the “total-policy-insuring-intent” test as in Garrick v. Northland Ins. Co., 469 N.W.2d 709, 712 (Minn.1991).

The “closest-to-the-risk” test asks three questions:

1. Which policy specifically described the accident causing instrumentality?
2. Which premium is reflective of the greater contemplated exposure?
3. Does one policy contemplate the risk and use of the accident-causing instrumentality with greater specificity than the other policy — that is, is the coverage of the risk primary in one policy and incidental to the other?

Interstate, 433 N.W.2d at 86 (quotation omitted). The “total-policy-insuring-intent” test examines “the primary policy risks and the primary function of each policy.” Redeemer Covenant Church v. Church Mut. Ins. Co., 567 N.W.2d 71, 80-81 (Minn.App.1997), review denied (Minn. Oct. 1, 1997) (citation omitted).

In its summary judgment order, the district court concluded that Redeemer was distinguishable from this case because in Redeemer the intent-based tests were performed only after determination that the insurer was obligated to provide coverage. The district court reasoned that because it did not find that Evanston was required to provide coverage to Cargill, it did not have to engage in the test suggested in Redeemer. But because we have determined that a claim was made against Cargill within Evanston’s policy period and that Cargill’s notice may be found to be timely, Evans-ton may, indeed have a duty to indemnify. Thus, whether its status was primary or secondary to other policies Cargill had at the time in question must be determined by utilizing either or both of the tests set out in Redeemer.

V.

In its fourth challenge, Cargill claims that the district court erred in interpreting the owned-property exclusion of the Evanston policy as prohibiting Cargill from seeking coverage from Evanston. There is merit in Cargill’s challenge.

The EIL policy states that coverage will not apply to claims for

damage to property: (a) owned or occupied by or rented to any Insured, or (b) used by any Insured, or (c) in the care, custody or control of any Insured.

The district court, in granting summary judgment to Evanston pursuant to this clause, found that the contaminated groundwater was part of Cargill’s property. In making this finding, the court relied on Georgia caselaw holding that groundwater is part of the owner’s property to the extent it is below the owner’s property. Boardman Petroleum, Inc. v. Fed. Mut. Ins., 269 Ga. 326, 498 S.E.2d 492, 495 (1998).

To support its decision to use Georgia law, the district court stated that of all the states potentially involved, Georgia has the strongest interest in determining how property within its borders is defined, and that to apply another state’s definition of groundwater would manifest disrespect for Georgia. See Milkovich v. Saari, 295 Minn. 155, 164-171, 203 N.W.2d 408, 413-17 (1973) (listing the five factors to be considered when choosing the applicable law as: (1) predictability of' results, (2) maintenance of interstate order, (3) advancement of the forum’s governmental interests, (4) application of the better rule of law, and (5) simplification of the judicial task).

We conclude that it was error to apply Georgia law in clarifying the meaning of an exclusion clause in an insurance contract between a Minnesota company and an Illinois insurer. While Georgia has a strong interest in cleaning up contamination discovered within its borders, it has comparatively minimal interest in determining who should pay for the cleanup of that contamination. Further, the policy at issue here is one covering all of Cargill’s properties that have exposure to environmental damages claims, regardless of the jurisdiction in which those claims may arise. Application of Georgia law in this case would indicate that the law of each state where Cargill’s properties are located could potentially control whether Cargill has insurance coverage under the EIL policy. It strains credulity 'to believe that either party to this contract of insurance could have intended such a result.

The contract of insurance in this case was signed in Minnesota; the parties involved are a Minnesota company incorporated in Delaware and an Illinois insurance company licensed to sell insurance in Minnesota. The record shows that the contract contained no choice-of-law provision indicating that the law of a certain state should apply in the event of a legal dispute. From these facts, it appears that if any states are to be involved in a choice-of-law analysis, it should be Minnesota and Illinois, the home states of the parties to the litigation.

Before a choice-of-law analysis is applied, this court must first determine if there is a conflict between the laws of the two forums. Nodak Mut. Ins. Co. v. Am. Family Mut. Ins. Co., 604 N.W.2d 91, 93-94 (Minn.2000). In Minnesota, groundwater is considered part of the public domain. Domtar, Inc. v. Niagara Fire Ins. Co., 563 N.W.2d 724, 734 (Minn.1997). Groundwater is also part of the public domain in Illinois. See 525 Ill. Comp. Stat. §§ 45/1—45/7 (2000) (Water Use Act of 1983, governing the use and withdrawal of groundwater in Illinois.). With no conflict, no further choice-of-law analysis is needed. In both Minnesota and Illinois, groundwater is not part of the owned property and its contamination establishes that offsite contamination exists. Because the law of Georgia was improperly applied to determine the status of groundwater, and because both Minnesota and Illinois law would deem groundwater to be part of the public domain, summary judgment on this ground to Evanston was improper and must be reversed.

VI.

A final issue requires consideration. During the pendency of this appeal, Ev-anston moved to strike certain documents from Cargill’s appendix to its brief. Ev-anston alleges that these challenged documents contain information not submitted to either Evanston or the district court. Upon careful review of the record before both this court and the district court, we deny Evanston’s motion.

First, a challenged January 2001 letter from GDNR to Cargill, submitted by Car-gill in an attempt to establish that the owned-property exclusion of the EIL policy does not apply, has no relevance to the facts of this case, and has in no way informed our decision. As noted earlier in this opinion, both Minnesota and Illinois law classify groundwater as a public resource.

Second, Evanston challenges charts summarizing Cargill's other insurance policies in existence during the period that Evanston provided coverage. But these charts merely condense information already in the record; Evanston appears to ' concede as much in its motion. See Truesdale v. Friedman, 267 Minn. 402, 405-06, 127 N.W.2d 277, 280 (1964) (allowing parties to shorten the printed record as much as possible without jeopardizing the arguments advanced on appeal). It appears that Evanston’s objection is based upon a belief that Cargill circumvented page limit requirements by including these charts in the appendix instead of in its brief.

A last challenge by Evanston is addressed to admission of proof of an insurance policy providing coverage to Cargill from 1978 to 1981. But this policy has no relevance to the question of whether Ev-anston should provide coverage to Cargill under the policy at issue here and has not been considered by us in addressing that issue.

DECISION

When the GDNR sent its first letter to Cargill in 1984 requesting that remedial measures be instituted at the Stevens site, a claim was made within the EIL policy period. Because neither Minnesota law nor Illinois law defines groundwater as owned property, the contamination at the Stevens site is properly characterized as offsite contamination and the owned property exclusion in the EIL policy does not apply. As such, the award of summary judgment on these two issues is reversed. Whether Cargill supplied timely notice of a claim to Evanston, is a question of fact; therefore, we reverse the award of summary judgment to Evanston on this basis and remand for resolution by the fact-finder. Furthermore, we reverse the award of summary judgment granted on the basis of the other-insurance clause in the Evanston policy and remand that issue for further proceedings not inconsistent with this opinion. We deny Evanston’s motion to strike.

Reversed and remanded in part; motion denied.

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

      . Evanston also reiterates an argument rejected by the district court, and urges that because Cargill failed to join all interested and necessaiy parties in the underlying declaratory judgment action pursuant to Minn.Stat. § 555.11 (2000) and Minn. R. Civ. P. 19.01, the entire action must be dismissed. Because Evanston failed to file a notice of review pursuant to Minn. R.App. P. 106, the issue is not properly before us.

      . At the summary judgment motion and on appeal, Evanston argues that any oral communications between Cargill and the GDNR could not be admitted because they are hearsay. Because we find that the content of the letters, alone, constituted a claim during the policy period, the status of the oral conversations becomes moot.

      . A claims-made policy requires the insured to give notice of the claim during the policy period. N.K.K. Knudson v. St. Paul Fire & Marine Ins. Co., 555 N.W.2d 21, 25 (Minn.App.1996), review denied (Minn. Dec. 23, 1996); see also Esmailzadeh v. Johnson & Speakman, 869 F.2d 422, 424 (8th Cir.1989) (stating that claims-made policies are those under which both claim against insured and notice to insurer are provided within term of the policy). The Evanston policy did not require notice to be given during the policy period, but instead only required that notice be given as soon as practicable. As such, it does not precisely fit the definition of a claims-made policy in Minnesota. Neither is the Evanston policy an occurrence policy; it does not require that the act giving rise to the claim occur within the policy period. See N.K.K., 555 N.W.2d at 25 (stating that occurrence policy requires the negligent act to occur during policy period). Ultimately, classification of the Evanston policy is irrelevant to an analysis of the issue needing decision: did Cargill give notice as soon as practicable?

      . The district court concluded that Cargill should have sought coverage from Continental before seeking coverage under the Evans-ton policy because Continental made an offer to provide coverage to Cargill. The record reveals, however, that while Continental did offer to provide coverage, it did so under a reservation of all rights until a further inspection of the claim could be made. Continental’s reservation of rights permitted it to withdraw its offer at any time, in effect providing Cargill with no more promising an option for coverage than that provided by Evanston or any other potential insurer. Furthermore, the record reveals that Continental's policy period was from 1971-1974. In view of our determination that a claim was made by GDNR in 1984, it is unlikely that Continental would agree to provide coverage for a claim occurring ten years after the end of its policy period. Further, it is not clear from our review of the record whether any of Cargill's other policies in effect at the time of the claim would provide coverage. Neither is it clear that the record on appeal even contains all policies available to Cargill at the time of the claim. Cargill offers a list of policies it claims were in existence at the same time as the Evanston policy; Evanston has offered its own list of different policies. Upon remand, the district court, in its discretion, may permit receipt of further evidence or argument on this issue.