author: HALBROOKS, Judge.

text:
    In the Matter of the Civil COMMITMENT OF Steven Leo RANNOW.
    No. A07-2246.
    Court of Appeals of Minnesota.
    May 20, 2008.

      Francis J. Eggert, Winsted, MN, for appellant Rannow.
    Michael K. Junge, McLeod County Attorney, Amy Elizabeth Olson, Assistant County Attorney, Glencoe, MN, for respondent State of Minnesota.

      Considered and decided by HALBROOKS, Presiding Judge; KLAPHAKE, Judge; and SCHELLHAS, Judge.
   OPINION

HALBROOKS, Judge.

Appellant Steven Leo Rannow challenges the district court’s denial of his motion to rescind its order committing appellant to the Minnesota Security Hospital for treatment as mentally ill and dangerous pursuant to Minn.Stat. § 253B.18 (2006). The district court issued its order following appellant’s stipulation that he is “mentally ill and dangerous,” as defined by Minn-Stat. § 253B.02, subd. 17 (2006). Appellant contends that the district court should not have accepted his stipulation because the record lacks a sufficient factual basis to support a finding of “dangerousness” and that the requirements of a criminal Alford plea apply to his civil-commitment stipulation. Because the district court did not abuse its discretion, we affirm.

FACTS

At the time that McLeod County petitioned to commit appellant as mentally ill and dangerous, appellant was serving a 36-month prison sentence for five felony convictions of violation of a restraining order. Appellant also had pending charges resulting from his multiple attempts to contact the same female victim while appellant was in prison.

The district court conducted a preliminary commitment hearing on February 13, 2006; appellant was represented by counsel. Appellant waived his right to have examiners appointed and agreed to stipulate that he is mentally ill and dangerous in exchange for the county’s agreement to drop the pending criminal charges. Appellant also agreed with the state that mental-health treatment was more appropriate for him than additional criminal convictions. Appellant was questioned about his rights by both his attorney and the district court. After concluding that appellant voluntarily and intelligently agreed to the stipulation, the district court entered an initial commitment order, transferring appellant to the security hospital.

On February 24, 2006, appellant filed a handwritten motion seeking “dismissal” of his commitment. Because the final commitment hearing was still pending, the district court took no action on appellant’s motion. The Minnesota Department of Human Services (MDHS) provided a report regarding appellant’s commitment on May 18, 2006. According to the report, appellant meets the criteria for commitment to the Minnesota Security Hospital, and MDHS diagnosed appellant with delusional disorder, erotomanic and persecuto-ry type, and antisocial- and borderline-personality traits. MDHS concluded that appellant demonstrated “active symptoms of major mental illness, impulsivity, irresponsibility and a lack of behavior controls.” The report also addressed appellant’s potential for future violent behavior:

Even though we can not definitely say whether [appellant] will become violent towards his victim, the warning signs in this particular case are of great concern. He demonstrates little insight, displays poor judgment, has not been cooperative with court orders or supervision, and becomes angry and irritable when discussing the victim. Finally, he has persisted to stalk the victim despite all of the negative consequences he has suffered.

Appellant returned to district court for a review hearing on June 1, 2006, and a final determination regarding his commitment pursuant to Minn.Stat. § 253B.18, subd. 2 (2006).

Appellant was again represented by counsel. Both of the attorneys and the district court questioned appellant concerning the waiver of his right to a contested final determination and indicated that he would be committed to the security hospital for an indeterminate period of time. Following the hearing, the district court filed its order of commitment. Appellant filed a notice of appeal, asking this court to vacate his stipulation on the ground that the district court erred in its determination that he is mentally ill and dangerous. We dismissed his appeal, concluding that appellant should have moved in district court to withdraw his stipulation before appealing to this court. Appellant subsequently moved the district court to reconsider and rescind its order for commitment. For reasons not established in the record, appellant withdrew this motion and then filed a second motion, seeking the same relief. The district court held a hearing on appellant’s motion on June 28, 2007, and subsequently denied appellant’s motion. This appeal follows.

ISSUE

Did the district court abuse its discretion in denying appellant’s motion to rescind his commitment as mentally ill and dangerous under Minn.Stat. § 253B.18 (2006)?

ANALYSIS

Appellant concedes that he is mentally ill but argues that he is not “dangerous” as defined in Minn.Stat. § 253B.02, subd. 17 (2006), because he has never engaged in an overt act causing or attempting to cause serious physical harm to another. He contends that his stipulation to the contrary was not voluntary and intelligent because the record contains an insufficient factual basis to establish a strong probability that he would be committed. While acknowledging his argument has no existing support in the law, appellant urges us to analogize this circumstance to an Alford plea in a criminal case. See North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970) (concluding that, largely because of the strong factual basis establishing the defendant’s guilt, the defendant voluntarily, intelligently, and rationally pleaded guilty to the charged crime despite maintaining his innocence).

But because commitment proceedings and commitment laws are civil in nature, we reject appellant’s argument. See Kansas v. Hendricks, 521 U.S. 346, 361-69, 117 S.Ct. 2072, 2081-85, 138 L.Ed.2d 501 (1997) (discussing Kansas’s civil-commitment law for sexually violent predators and holding that it does not constitute a criminal proceeding); Specht v. Patterson, 386 U.S. 605, 610 n. 3, 87 S.Ct. 1209, 1212 n. 3, 18 L.Ed.2d 326 (1967) (noting that a former version of the Minnesota psychopathic-personality-commitment law is not criminal in nature); In re Linehan, 594 N.W.2d 867, 871-72 (Minn.1999) (following the holding of Hendricks). In a civil matter, a stipulation “cannot ordinarily be repudiated or withdrawn from by one party without the consent of the other, except by leave of the court for cause shown.” Gran v. City of St. Paul, 274 Minn. 220, 223, 143 N.W.2d 246, 249 (1966). The decision to vacate a stipulation “rests largely in the discretion of the [district] court, and its action will not be reversed absent a showing that the court acted so arbitrarily as to constitute an abuse of that discretion.” Anderson v. Anderson, 303 Minn. 26, 32, 225 N.W.2d 837, 840 (1975). A stipulation may be vacated when it was made improvidently and in good conscience and equity should not stand. John v. John, 322 N.W.2d 347, 348 (Minn.1982). When there is fraud or duress that prejudices the party making the stipulation, the stipulation was improvidently made. Toughill v. Toughill, 609 N.W.2d 634, 639 (Minn.App.2000).

The record before us demonstrates that the district court acted within its discretion in refusing to vacate the stipulation. At two hearings, appellant engaged in lengthy on-the-record discussions with his attorney regarding his potential stipulation that he is mentally ill and dangerous. Appellant was clearly informed of the consequences of his civil commitment and made his understanding evident in the record. At the preliminary commitment hearing, appellant had the following exchange with his attorney about the consequences of his commitment:

Q: ... I told you that it’s an indefinite commitment if this commitment becomes final. That means that there is no set term to the commitment. It’s strictly up to the Commissioner of Human Services to determine when you should be provisionally discharged or discharged. Do you understand that?
A: Yes.
Q: It’s not like when you get a term to prison, you get a set term, that’s not the way it works when you are committed to a state hospital under a commitment. Do you understand that?
A: Yes.

Appellant expressed his awareness that if he chose not to agree to the stipulation that he could still be subject to criminal charges for his more recent violations of the restraining order. In discussing the stipulation with the district court, appellant made it clear that he desired treatment rather than incarceration.

Court: Okay. Now, by going through this process, you’re agreeing that — you’re stipulating with— which means you are agreeing to a mental illness and to being mentally ill and dangerous for purposes of being committed to St. Peter. Do you understand that?
A: Yes.
Court: Okay. And the State has indicated that they have some reservations as to whether they could prove that you’re dangerous and that’s why they’re only willing to agree to this if you are willing to agree to this. Do you understand that?
A: I understand.
Court: Okay. And you’re willing to do it because then hopefully instead of spending a lot more years in a prison cell, and/or reoffending, that you get treatment that will allow you to be free of doing this type of conduct. Is that all correct?
A: Yes.
Court: Okay. In so doing this, you will not get a — what they call a speedy trial. If you wanted to go ahead and assert any defense, whether that included a mental illness defense or not, you have the right to have a speedy trial. But by attempting to resolve your matter via a commitment to the Commissioner of Human Services, you have to waive your right to a speedy trial. Do you understand that?
A: I understand.
Court: Okay. And do you then in fact waive your right to a speedy trial?
A: Yes.

At appellant’s review hearing, he had another lengthy discussion with his attorney about the stipulation and his desire to enter into the agreement. Appellant and his attorney also specifically addressed the issue of stipulating to being “dangerous” as defined by section 253B.02:

Q: And the hearing is to determine, if there were to be a contested hearing, would be to determine if the judge should commit you as being mentally ill and dangerous, do you understand that?
A: Yes, I understand.
Q: And I think you previously had been committed as being mentally ill to Willmar Regional Treatment Center a few years back; is that correct?
A: That’s correct.
Q: And that commitment ended by Willmar basically, for whatever reason, saying it’s over, and then you were committed back to the jail cell on criminal charges; is that correct?
A: Yes.
Q: Okay. This commitment is different than that, you know, this is for committing someone as mentally ill. This is to commit someone as being mentally ill and dangerous. And you and I talked about this and specifically the definition of the term dangerous. Is that correct that we talked about that?
A: Yes.
Q: And the question is not so much on the mental illness part of it, because this doctor has submitted a rather lengthy and exhaustive report concerning you having a mental illness, but it’s more on the issue of definition of dangerous, do you understand that?
A: I understand.
Q: And I’ve explained this to you, have I not?
A: Yes.
Q: Okay. And I’ve explained to you as best I can what the differences are here between your agreeing to waive your right to have a hearing versus saying, well, gee, you know, I’ve decided not to go along with this, correct?
A: Correct.
Q: And I told you that if you were — if you now decided that you didn’t want to waive your right to a hearing, the State could either proceed with those criminal charges or still attempt to have you committed and have a contested hearing. I told you that they would have those two options, did I not?
A: Yes.
Q: Okay. Have you had enough time to think about this and make this decision here today?
A: Yes.
Q: No one’s forced or threatened you to give up your rights and — that you had to do it this way, correct?
A: Correct.
Q: Are you making a free and voluntary decision?
A: Yes, I am.

The district court concluded that appellant

was well aware that if he did not enter into the stipulation [the state] would have to prove that he was dangerous before [appellant] could be committed. Despite this, [appellant] had good reason to enter into the stipulation because it would result in the dismissal of multiple criminal charges that were pending against him.

Appellant had a sound, rational basis for entering into the stipulation, and the record lacks any evidence of fraud or duress that influenced appellant to do so. Appellant’s response in the detailed exchanges that appellant had with both his attorney and the district court support the district court’s determination that appellant understood the advantages and disadvantages of the stipulation. Because appellant made the stipulation knowingly and voluntarily, the district court acted within its discretion by not rescinding it.

As to his second argument, appellant contends that he cannot waive his right to be determined to be “dangerous” or stipulate to that fact because the record lacks the factual support for a finding that he is “dangerous” as defined by Minn.Stat. § 258B.02 (2006). If appellant had chosen to contest that determination in district court, the state could have developed the record to present evidence in an attempt to prove that appellant meets the definition of “dangerous.” Because appellant stipulated to being mentally ill and dangerous, there was no need to develop those facts in the record. Appellant cannot now suggest that the lack of evidence in the record should enable him to avoid the consequences of his stipulation.

Appellant urges us to apply the standard used in criminal pleas rather than the civil standard in evaluating whether his stipulation is valid. See State v. Goulette, 258 N.W.2d 758, 761 (Minn.1977) (adopting the United States Supreme Court’s holding in Alford in the context of a criminal plea and placing particular emphasis on the need to ensure a strong factual basis is present making conviction probable before deeming such a plea as having been voluntarily and intelligently made). Although we find no authority dealing with this issue in the context of a mentally-ill-and-dangerous commitment, we see no reason to distinguish mentally-ill-and-dangerous commitments from other civil-commitment proceedings. See In re Linehan, 557 N.W.2d 167, 169 (Minn.1996) (concluding that sexually-dangerous-person act is facially civil), vacated on other grounds, 522 U.S. 1011, 118 S.Ct. 596, 189 L.Ed.2d 486 (1997), aff'd on remand, 594 N.W.2d 867 (Minn.1999); Call v. Gomez, 535 N.W.2d 312, 319-20 (Minn.1995) (holding that commitment under the sexually-psychopathic-personality law is remedial because it is for treatment purposes). Because civil-commitment proceedings are not criminal in nature, see Specht, 386 U.S. at 610 n. 3, 87 S.Ct. at 1212 n. 3, we decline to apply the Alford requirements to appellant’s stipulation.

DECISION

Because appellant made a voluntary and intelligent stipulation in a civil matter, the district court properly denied appellant’s motion to rescind the order for commitment under Minn.Stat. § 253B.18 (2006).

Affirmed.


source: Caselaw Access Project

author: LANSING, Judge.

license: Public Domain

text:
    In re the Marriage of Shane C. PERRY, joint petitioner, Appellant, v. Jane Hall PERRY, n/k/a Jane Hall-Dayle, joint petitioner, Respondent.
    No. A07-0981.
    Court of Appeals of Minnesota.
    May 20, 2008.

      Shane C. Perry, Minneapolis, MN, attorney pro se.
    Jennifer R. Wellner, Wellner & Isaac-son, PLLP, Circle Pines, MN, for respondent.
    Considered and decided by JOHNSON, Presiding Judge; LANSING, Judge; and COLLINS, Judge.

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

   OPINION

LANSING, Judge.

A family-court referee dismissed Shane Perry’s motion to modify child support because a previous child-support order was pending on appeal. We conclude that the district court — and thus the family-court referee had jurisdiction over Perry’s motion because it was supplemental and collateral to the issue on appeal. But we also conclude that the district court had discretion to stay or defer its decision until after this court issued its opinion on the pending appeal. Because the motion was dismissed — instead of being stayed or deferred — we reverse and remand.

FACTS

Shane Perry and Jane Hall-Dayle dissolved their ten-year marriage in 1999. The marital-dissolution judgment provided for joint legal and physical custody of their four children. Perry and Hall-Dayle agreed that neither would pay child support unless a substantial change in circumstances occurred.

After two of the children began to live with Perry full time, Perry moved for child support and obtained monthly child support of $688.91. The district court calculated this amount by imputing income to Hall-Dayle and by using the HoHis/Valen-to formula, under which a parent’s child-support obligation is offset by the other parent’s child-support obligation. Hall-Dayle appealed this decision and we affirmed. Perry v. Perry, No. A06-1133, 2007 WL 1191709 (Minn.App. Apr. 24, 2007), review denied (Minn. July 17, 2007).

While the case was on appeal, Perry filed a motion requesting that the district court compel Hall-Dayle to pay unpaid child support for March and April 2006 and to pay his attorneys’ fees. In addition, Perry requested an “order compelling Jane Hall-Dayle to pay the balance of child support for [all four children] due from May 2006 through the date of the hearing and continuing thereafter until further order of the Court without any Hortis-Valento reduction.”

At the motion hearing, a family-court referee considered Perry’s request. The referee granted Perry’s motion to compel payment of child support for March and April 2006. But the referee denied the balance of Perry’s motion. The referee explained:

I’m denying the motion to modify the last child support order to eliminate the Hortis-Valento computation ... I think there is going to at least have to be a change of custody, but in any event, it would be a modification of that order and it’s on appeal. The child support order is on appeal, and I’m not going to — I can’t address it at this time, but at minimum I would believe that you would have to at least get an award of sole physical custody....

The district court confirmed the referee’s recommended order and Perry appeals.

ISSUE

Did the district court have jurisdiction over the motion to modify child support when the previous child-support order was on appeal?

ANALYSIS

Once an appeal has been filed, the district court’s authority — and thus the referee’s authority — to act on the matter is governed by Minn. R. Civ.App. P. 108.01, subd. 1, which states:

[T]he filing of a proper and timely appeal suspends the authority of the trial court to make any order necessarily affecting the order or judgment appealed from. The trial court retains jurisdiction as to matters independent of, supplemental to, or collateral to the order or judgment appealed from, and to enforce its order or judgment.

The rule “is designed to avoid the confusion and waste of time potentially arising from having the same issues before two courts at the same time.” Spaeth v. City of Plymouth, 344 N.W.2d 815, 825 (Minn.1984).

This appeal presents the question of whether the district court had authority to rule on Perry’s motion to modify child support while his previous motion to modify was on appeal. The answer, by application of the rule, depends on whether a modification order would “necessarily affect[]” the previous child-support order. Minn. R. Civ.App. P. 108.01, subd. 1. If so, then the district court properly concluded that it has no power to act. If, however, the modification sought would be “independent of, supplemental to, or collateral to” the previous child-support order, then the district court has the authority to consider and decide the motion. Id.

Our interpretation of the phrase “necessarily affecting” is guided by two principles. First, an order does not necessarily affect the order on appeal if it involves a new set of facts and does not require the district court to consider the merits of the issue on appeal. In re Timlin, 660 N.W.2d 140, 143 (Minn.App.2003) (holding that district court has jurisdiction over continuing commitment during appeal of initial commitment); see also Spaeth, 344 N.W.2d at 824-25 (holding that district court retained jurisdiction to calculate amount of attorneys’ fees). Second, in the family-law context, the district court’s authority to act should be construed in a way that permits the courts to respond to changing circumstances and protect the best interests of the children. See In re Welfare of C. Children, 348 N.W.2d 94, 99 (Minn.App.1984) (discussing changing circumstances of child’s life). Thus, in the child-protection context, “the juvenile court retains jurisdiction to modify dispositions because such decisions frequently must be made quickly to protect the child.” Id.

Relying on these principles and the previous decisions addressing similar issues, we conclude that the motion to modify child support did not necessarily affect the previous child-support order. A request for modification of child support must be based on allegations of changed circumstances. See MinmStat. § 518A.39, subd. 2 (Supp.2007) (listing reasons for modification). Thus, a proper motion would be grounded on new facts and would not require the district court to reconsider the same issues on appeal. See Thulin, 660 N.W.2d at 143 (upholding jurisdiction based on similar factors). Furthermore, because child support has a direct impact on child welfare, the district court’s jurisdiction in this context should be broadly construed. See Welfare of C. Children, 348 N.W.2d at 99 (discussing need to protect child’s welfare).

We therefore conclude that a properly grounded motion to modify child support is “independent of, supplemental to, or collateral to” previous child-support orders. Minn. R. CivApp. P. 108.01, subd. 1. Because Perry’s motion was properly grounded, the district court retained jurisdiction to consider Perry’s motion.

We note, however, that the district court need not immediately exercise its jurisdiction to act on the motion. To effectuate principles of judicial economy, the district court retains discretion in certain circumstances to defer its decision on new motions until after an appeal is decided. See Briggs v. Shea, 48 Minn. 218, 219, 50 N.W. 1037, 1037 (1892) (noting that “[tjhere might be a case where it would be proper for the court to decline to go on pending the appeal ... but that would not affect its power to do so — its jurisdiction”). This is analogous to the discretion the district court may exercise in deciding whether to enforce an order or judgment that has been appealed. “[Wjhile the trial court possesses the power to proceed while an appeal is pending to enforce the order or judgment appealed from, it may, in its discretion, decline to do so even in the absence of a supersedeas bond.” 3 Eric J. Magnuson & David F. Herr, Minnesota Practice § 108.4 (2007).

Our resolution of this appeal raises the question of the circumstances in which the district court’s discretion to stay a decision might reasonably be exercised. When a litigant has not filed a supersedeas bond and seeks to stay enforcement of the order appealed from, a stay should be exercised sparingly and only when “the unique circumstances of a particular case make it in the public interest to order such a stay.” No Power Line, Inc. v. Minnesota Envtl. Quality Council, 262 N.W.2d 312, 330-31 (Minn.1977). In this case, however, the purpose of the stay or deferral is to protect the on-going interests of children and to conserve judicial resources, not to circumvent the supersedeas bond requirement. Consequently, the district court has substantial latitude to exercise its discretion.

Under the circumstances of this case, it would not have been an abuse of discretion for the district court to defer or stay its ruling on Perry’s motion. Although the motion to modify child support was based on new facts, the arguments raised by the parties were similar to those at issue in the pending appeal. To conserve judicial resources, the district court could therefore reasonably decide to await this court’s decision.

Instead of staying or deferring the motion, however, the district court dismissed Perry’s second child-support motion on jurisdictional grounds. In many cases, the distinction between a stay and a dismissal may be minimal. But because child-support modification is retroactive only in limited circumstances, Perry could not now obtain the same relief by filing a new motion to modify child support. See Minn. Stat. § 518A.39, subd. 2(e) (Supp.2007) (discussing retroactive orders for child support). We therefore reverse the dismissal and remand for consideration of Perry’s modification motion.

Perry and Hall-Dayle addressed the merits of the second modification motion in their briefs. The family-court referee, however, did not reach the merits of the motion and neither do we. Unless a new reason to stay or defer its decision arises, the district court should now address the merits of Perry’s motion on remand.

DECISION

Because the district court had jurisdiction over the motion to modify and the motion was dismissed — instead of being stayed or deferred — we reverse and remand.

Reversed and remanded.


author: PETERSON, Judge.

text:
    In the Matter of the Claim for Benefits by David M. JERVE.
    No. A07-0803.
    Court of Appeals of Minnesota.
    May 27, 2008.

      Arlo H. Vande Vegte, P.A., Long Lake, MN, for relator David M. Jerve.

      Lori Swanson, Attorney General, Bernard E. Johnson, Assistant Attorney General, St. Paul, MN, for respondent Minnesota Public Safety Officers Benefit Eligibility Panel.
    Considered and decided by STONEBURNER, Presiding Judge; PETERSON, Judge; and WRIGHT, Judge.
   OPINION

PETERSON, Judge.

Relator, who was injured while he was a part-time police officer attending a skills course to become a full-time police officer, appeals from respondent’s denial of his application for continued health coverage under Minn.Stat. § 299A.465 (2006). Relator argues that respondent exceeded its authority by going beyond the unambiguous language of Minn.Stat. § 299A.465 and considering his status as a part-time officer when determining whether he was a “peace officer” entitled to continued health coverage. We reverse.

FACTS

Relator David M. Jerve was hired by the City of Montevideo in 1979 to work as a firefighter/police dispatcher and later became licensed to work as a part-time police officer. After relator had worked for the city as a part-time police officer for about three years, the police chief told him that if he completed the requirements to obtain his license as a full-time police officer, the city would hire him as a full-time officer. Relator then enrolled in a skills-training course to satisfy the license requirements for a full-time officer. The city paid his salary while he attended the course.

During a six-mile run that was part of the skills-training course, relator suffered heat stroke, became disoriented, collapsed, and injured his knee. Despite his injury, relator obtained his license to work full-time and worked as a police officer for Montevideo for 21 years. But during the 20 years following his knee injury, relator had five knee surgeries. The knee condition became worse after the fifth surgery, and relator was approved for a duty-related disability pension. Relator filed a claim with respondent Minnesota Public Safety Officer’s Benefit Eligibility Panel for continuing health coverage under Minn.Stat. § 299A.465, subd. 1 (2006), and the panel denied the claim based on relator’s part-time employment status at the time of the injury. This certiorari appeal followed.

ISSUE

Did the benefit-eligibility panel err in considering relator’s part-time employment status when determining whether relator is entitled to continued health coverage under Minn.Stat. § 299A.465, subd. 1?

ANALYSIS

This court reviews quasi-judicial administrative decisions by writ of certio-rari. Dietz v. Dodge County, 487 N.W.2d 237, 239 n. 3 (Minn.1992). On certiorari review, this court will reverse an administrative body’s decision that exceeds its jurisdiction or is based on an erroneous theory of the law. Id. at 239. The construction of a statute is a question of law fully reviewable by an appellate court. Hibbing Educ. Ass’n v. Pub. Employment Relations Bd., 369 N.W.2d 527, 529 (Minn.1985). A reviewing court is not bound by an agency’s interpretation of a statute. Arvig Tel. Co. v. Nw. Bell Tel. Co., 270 N.W.2d 111, 114 (Minn.1978).

Relator argues that the panel’s decision is void because the panel did not comply with the requirements for a contested-case proceeding under the Administrative Procedure Act (APA), Minnesota Statutes chapter 14. After questioning jurisdiction and reviewing the parties’ submissions, by special-term order, this court determined that this proceeding is not a contested case as defined by the APA. The APA defines a “contested case” as “a proceeding before an agency in which the legal rights ... of specific parties are required by law ... to be determined after an agency hearing.” Minn.Stat. § 14.02, subd. 3 (2006); see also' Minn.Stat. § 14.02, subd. 2 (2006) (defining agency). The panel has the authority to determine eligibility for continued health coverage but is not required to initiate a contested-case proceeding. Minn.Stat. § 299A.465, subd. 7 (2006). Because this was not a contested case, the panel did not need to comply with the requirements for a contested-case proceeding under the APA.

Relator argues that the benefit-eligibility panel exceeded its jurisdiction in denying his claim based on his status as a part-time peace officer at the time of his injury. The panel determined that relator was not eligible for continued health coverage because he did not meet the definition of peace officer. Because the term “peace officer” is defined by statute, whether the panel erred in construing the term is an issue of statutory construction, not jurisdiction.

When a peace officer suffers a disabling injury, the officer’s employer is required by statute to continue to provide health coverage for the officer (and in some .circumstances, the officer’s dependents) until the officer reaches the age of 65. Minn. Stat. § 299A.465, subd. 1 (2006). This requirement

applies when a peace officer ... suffers a disabling injury that:
(1) results in the officer’s ... retirement or sepáration from service;
(2) occurs while the officer ... is acting in the course and scope of duties as a peace officer ...; and
(3) the officer ... has been approved to receive the officer’s ... duty-related disability pension.

Minn.Stat. § 299A.465, subd. 1(a).

Whenever a peace officer ... has been approved to receive a duty-related disability pension, the officer ... may apply to the [benefit-eligibility] panel established in subdivision 7 for a determination of whether or not the officer ... meets the requirements in subdivision 1, paragraph (a), clause (2). In making this decision, the panel shall determine whether or not the officer’s ... occupational duties or professional responsibilities put the officer .... at risk for the type of illness or injury actually sustained. A final determination by the panel is binding on the applicant and the employer, subject to any right of judicial review.

Minn.Stat. § 299Á.465, subd. 6(a) (2006).

The benefit-eligibility panel denied relator’s claim, stating:'

[relator’s] only reported injury occurred in 1988 when he was a part-time peace officer, while in training to become a full-time peace officer. [Relator] did not meet the definition of a peace officer under Minn.Stat. § 299A.465, subd. 5(a). Since no injury occurred while [relator] was employed as a peace officer, his occupational duties and professional responsibilities did not put him at risk for the injury he sustained, as required by Minn.Stat. § 299A.465, subd. 6.

Minn.Stat. § 299A.465, subd. 5(a) (2006), does not directly define the term “peace officer.” Instead, that subdivision provides that for purposes of section 299A.465, “ ‘Peace officer’ or ‘officer’ has the meaning given in section 626.84, subdivision 1, paragraph (e).” Minn.Stat. § 299A.465, subd. 5(a) (2006). Minn.Stat. § 626.84, subd. 1(c) (Supp.2007), states:

“Peace officer” means:
(1) an employee or an elected or appointed official of a political subdivision or law enforcement agency who is licensed by the board [of peace officer standards and training], charged with the prevention and detection of crime and the enforcement of the general criminal laws of the state and who has the full power of arrest; and
(2) a peace officer who is employed by a law enforcement agency of a federally recognized tribe, as defined in United States Code, title 25, section 450b(e), and who is licensed by the board.

Minn.Stat. § 626.84, subd. 1 (Supp.2007), also contains a definition of “part-time peace officer,” which appears in paragraph (d) of that subdivision. The benefit-eligibility panel essentially concluded that because Minn.Stat. § 626.84 separately defines the term “part-time peace officer,” the legislature must have intended to exclude part-time peace officers from the definition of peace officer for purposes of the statutory requirement to provide continued health coverage for disabled peace officers.

Citing its own expertise, the panel argues that its decision should be accorded great deference by this court. Deference is owed an agency’s interpretation of its governing statute when the statutory language is technical in nature and the interpretation is one of longstanding application. Arvig Tel. Co., 270 N.W.2d at 114. But the rule does not apply when statutory language is clear and unambiguous. In re Mortician License Application of Werner, 571 N.W.2d 600, 601 (Minn.App.1997). When the words of a statute are “clear and free from all ambiguity, the letter of the law shall not be disregarded under the pretext of pursuing the spirit.” Minn.Stat. § 645.16 (2006). If the legislative intent “is clearly discernible from plain and unambiguous language, statutory construction is neither necessary nor permitted and courts apply the statute’s plain meaning.” Am. Tower, L.P. v. City of Grant, 636 N.W.2d 309, 312 (Minn.2001).

In clear and unambiguous language, Minn.Stat. § 626.84, subd. 1(c), states four specific requirements that a person must meet to fall within the definition of “peace officer,” and these requirements make no distinction between full-time and part-time employment status. An officer who meets the four requirements and suffers a qualified disabling injury is entitled to continued health coverage under the plain language of Minn.Stat. § 299A.465, subd. 1. It is not disputed that when he was injured, relator met the four requirements; he was (1) an employee of the City of Montevideo, (2) licensed by the Board of Peace Officer Standards and Training, (3) charged with the prevention and detection of crime and the enforcement of the general criminal laws of the state, and (4) had the full power of arrest. Therefore, the panel had no reason to look beyond section 626.84, subdivision 1, paragraph (c), when determining whether relator was a peace officer at the time of his injury and erred in denying relator continued health coverage based on his status as a part-time peace officer. By considering the definition of “part-time peace officer” in paragraph (d), the panel created an ambiguity in the statute that would not have existed if paragraph (d) had not been considered.

The parties also address whether relator’s occupational duties or professional responsibilities put him at risk for the type of injury he sustained. But the transcript of relator’s hearing before the benefit-eligibility panel indicates that a member of the panel moved “to deny this application based on my understanding and my belief that [relator] was not a peace officer at the time of the only reported injury,” and the motion carried. Furthermore, the determination order states that relator’s claim was denied because he did not meet the statutory definition of a peace officer, and “[s]ince no injury occurred while [relator] was employed as a peace officer, his occupational duties and professional responsibilities did not put him at risk for the injury he sustained, as required by Minn. Stat. § 299A.465, subd. 6.” These statements demonstrate that the panel did not consider relator’s actual occupational duties or professional responsibilities when it determined that his duties and responsibilities did not put him at risk for the type of injury he sustained; it simply concluded that because relator was not a peace officer, his occupational duties and professional responsibilities could not be the duties and responsibilities of a peace officer. Because the transcript and the determination order demonstrate that the sole basis for the benefit-eligibility panel’s decision was that relator did not meet the definition of “peace officer,” we will not address whether relator’s occupational duties or professional responsibilities put him at risk for the type of injury he sustained. See In re Livingood, 594 N.W.2d 889, 893 n. 3 (Minn.1999) (stating that if decision-making body states reasons for quasi-judicial decision, review will be limited to legal sufficiency and factual basis for those reasons).

DECISION

The panel erred in determining that relator did not meet the definition of “peace officer,” in Minn.Stat. § 626.84, subd. 1(c) (2006). Relator is entitled to continued health coverage under Minn.Stat. § 299A.465, subd. 1 (Supp.2007).

Reversed.

      . In his reply brief, relator argues that respondent improperly cites legislative history that was not cited to the benefit-eligibility panel. Legislative history is a legal resource. This court may consider legal resources not cited to the tribunal whose decision is being appealed. Sylvester Bros. Dev. Co. v. Great Cent. Ins. Co., 480 N.W.2d 368, 376-77 (Minn.App.1992), review denied (Minn. Mar. 26, 1992).


author: WRIGHT, Judge.

text:
    DORSEY & WHITNEY LLP, lien claimant, Respondent, v. Andrew GROSSMAN, et al., Appellants.
    No. A07-0358.
    Court of Appeals of Minnesota.
    May 27, 2008.

      Perry M. Wilson, III, Angela M. Hall, Dorsey & Whitney, Minneapolis, MN, for respondent.
    Timothy D. Kelly, Carrie L. Zochert, Kelly & Berens, Minneapolis, MN, for appellants.
    Considered and decided by WRIGHT, Presiding Judge; TOUSSAINT, Chief Judge; and WILLIS, Judge.
   OPINION

WRIGHT, Judge.

This appeal arises out of a disagreement regarding compensation to respondent law firm for its legal representation of appellants. After a summary proceeding under Minn.Stat. § 481.13 (2006), the district court concluded that respondent is entitled to two attorney liens and ordered entry of two judgments against appellants. On appeal, appellants argue that (1) their relationship with respondent constituted a joint venture and was, therefore, not governed by section 481.13; (2) the district court erroneously interpreted their contract with respondent by (a) miscalculating the amount due, and (b) excluding certain work from the scope of the contract; and (3) the district court erroneously interpreted section 481.13 by (a) entering judgments contrary to the plain language of the statute, and (b) declining to entertain their legal-malpractice claim.

We affirm except as to the nature of the judgments entered. Because the district court erroneously directed entry of a $126,236.23 personal judgment against appellant-corporation and failed to identify the property subject to the attorney lien, we affirm the determination of the amount of the lien but reverse as to the nature of the lien and remand for determination of the property subject to this lien. To eliminate ambiguity regarding the nature of the $586,312.20 judgment, we affirm that judgment as modified.

FACTS

Appellant ABCO Research (ABCO) owns several patents relating to a method for restoring teeth. ABCO obtained these patents from the inventor, Dr. Robert Ha-sel. Hasel and appellant Andrew Gross-man formed ABCO in 1988 for the sole purpose of enforcing and exploiting the patents (the Hasel patents).

In October 1997, respondent Dorsey & Whitney (Dorsey) began representing ABCO and its representatives in licensing and other non-litigation matters, including patent prosecution before the United States Patent and Trademark Office (USP-TO). Dorsey billed ABCO on an hourly basis for this representation.

By August 1999, ABCO decided that it needed to pursue multiple legal actions to stop infringement and to make the Hasel patents profitable. But because the Hasel patents were not generating income sufficient to finance multiple legal actions simultaneously, ABCO could not continue to pay for legal services under a straight billable-hours fee arrangement. Consequently, Grossman, ABCO, and Dorsey entered into a written agreement (the agreement), which “sets out the basis on which [Dorsey] shall provide legal services” to Grossman and ABCO “for the purposes of patent enforcement, patent exploitation, and patent license efforts.” The agreement specifies that it does not pertain to “legal services [Dorsey] may provide to [ABCO and Grossman] in matters unrelated to the patent enforcement, patent exploitation, and patent license efforts” for the Hasel patents. The agreement also explicitly provides that ABCO and Gross-man are not obligated to undertake “any specific litigation or other enforcement effort,” and Dorsey is not required to represent ABCO and Grossman in connection with any specific legal action.

The agreement requires Dorsey to create and maintain two separate billing files: one for litigation services (litigation file) and one for licensing services (licensing file). All time spent on legal services that Dorsey provided on any litigation, including infringement investigations, is billed to the litigation file; all time spent on legal services provided for licensing negotiations and nonlitigation-related agreements is billed to the licensing file. The agreement also requires Dorsey to send ABCO and Grossman monthly statements indicating the “standard matter value at then-current standard rates” for legal services provided with respect to time billed to each file.

In relevant part, the agreement requires ABCO and Grossman to pay Dorsey 40 percent of “any recovery received during [each] quarter as attorneys’ fees.” The agreement defines “recovery” as

any income received by [ABCO and Grossman], at any time after the effective date of this agreement, whether through litigation or licensing, and whether through payment on a judgment, court order, settlement, contract, license agreement, or other royalty mechanism, or any other means by which money is paid to or on behalf of [ABCO and Grossman] with respect to patent enforcement, exploitation, and patent license efforts....

But the agreement deducts from the recovery “any amounts paid by [ABCO and Grossman] for expenses and service charges,” including out-of-pocket expenses, such as court filing fees, local-counsel fees, costs for depositions and expert witnesses, photocopying, costs for obtaining file histories, telephone and fax charges, and similar expense items.

Pursuant to the agreement, Dorsey represented ABCO in litigation against various entities and pursued licensing efforts on behalf of ABCO and Grossman. Dorsey consistently billed ABCO and Gross-man for this work according to the terms of the agreement. During this same time, Dorsey also conducted patent-prosecution work on behalf of ABCO. And Dorsey consistently billed ABCO for the patent-prosecution work on an hourly fee basis.

In October 2005, Dorsey withdrew from its representation of ABCO and Grossman. By that time, Dorsey had received a total of approximately $53,729 from ABCO and Grossman, which the parties agree represents the total amount that ABCO and Grossman paid Dorsey for its legal services prior to Dorsey initiating this attorney-lien action.

In November 2005, Dorsey sent ABCO and Grossman notices of two attorney liens, identifying as the bases for the asserted liens its representation under the agreement and its patent-prosecution work for ABCO. Dorsey also filed a UCC financing statement in connection with each lien. Shortly thereafter, Dorsey petitioned the district court pursuant to Minn.Stat. § 481.13, subd. 1(c) (2006), to determine the amounts of the attorney liens and to enter judgment against ABCO and Gross-man for those amounts.

ABCO and Grossman countered Dorsey’s petition, arguing that (1) their relationship with Dorsey was a joint venture and, therefore, outside the scope of section 481.13; (2) Dorsey breached the agreement and, therefore, was not entitled to an attorney lien based on the agreement; (3) Dorsey was not entitled to a separate attorney lien for Dorsey’s patent-prosecution work because the agreement included that work; (4) the amount that Dorsey claimed was incorrect under the agreement; and (5) Dorsey could not seek a personal judgment pursuant to section 481.13.

After a hearing, the district court wrote to the parties, advising them of its intent to rule in favor of Dorsey. The district court indicated, however, that, based on the evidence submitted by the parties, the district court was unable to determine the “recovery” amount, including applicable deductions, from which fees, and therefore the amount of the liens, were to be calculated.

Consequently, the parties conducted discovery and ultimately stipulated to a number of facts, including the gross recovery from the Hasel patents. But they disagreed as to (1) the amount deductible from the recovery, and (2) whether the agreement included the patent-prosecution work. After a hearing on these remaining issues, the district court concluded that Dorsey is entitled to an attorney lien on the Hasel patents limited to the Hasel patents’ proceeds. The district court directed entry of one judgment in the amount of $586,312.20 in favor of Dorsey and against ABCO and Grossman, jointly and severally, and another judgment in the amount of $126,236.23 in favor of Dorsey and against ABCO. The district court further ordered that the liens “remain in existence until the obligations are paid.”

Less than one month after the judgments were entered, counsel for ABCO and Grossman wrote to the district court to request clarification of its order. Counsel advised the district court that Dorsey had been attempting to collect on both judgments without regard to whether the funds sought were proceeds from the Ha-sel patents. In response, the district court issued an amended order, which specified that the $586,312.20 judgment is limited to the proceeds from the Hasel patents but the $126,236.23 judgment “is a separate lien” that is “not limited to the proceeds from the ‘Hasel Patents’ or in any other way.”

This appeal followed. After ABCO and Grossman filed their notice of appeal, Dorsey filed a timely notice of review pursuant to Minn. R. Civ.App. P. 106.

ISSUES

I. Does the agreement establish a joint venture?

II. Did the district court erroneously interpret the agreement by rejecting appellants’ claimed deduction and excluding respondent’s patent-prosecution work from the agreement?

III. Did the district court erroneously interpret the attorney-lien statute, Minn.Stat. § 481.13 (2006), by directing entry of personal judgments against appellant-corporation and declining to entertain a legal-malpractice claim in the summary proceeding?

ANALYSIS

I.

ABCO and Grossman first argue that the agreement is a joint-venture agreement and, therefore, is not subject to the attorney-lien statute, Minn.Stat. § 481.13 (2006). The district court did not explicitly address this joint-venture argument. But from the district court’s . silence on this issue and its application of the attorney-lien statute, we infer that the district court concluded that there was no competent evidence demonstrating a joint venture.

The existence of a joint venture ordinarily presents an issue of fact, but the district court may decide the issue as a matter of law if there is no competent evidence to support a finding of joint venture. Duxbury v. Spex Feeds, Inc., 681 N.W.2d 380, 390 (Minn.App.2004), review denied (Minn. Aug. 25, 2004). Under this circumstance, we review de novo a district court’s determination as a matter of law that a joint venture does not exist. Id.

Four elements are necessary to establish a joint venture: (1) each party must make a contribution of money, property, time, or skill to the enterprise; (2) the parties must have joint proprietorship and control such that each party has a proprietary interest and the right of mutual control over the enterprise; (3) the parties must have an express or implied agreement to share the profits, but not necessarily the losses, from the enterprise; and (4) the parties must have entered into an express or implied contract. Id. Here, there is no competent evidence as to the second and third elements.

The agreement did not grant Dorsey control over the Hasel patents or authorize Dorsey to make any decisions pertaining to the patent enforcement, exploitation, or licensing efforts. Notwithstanding these omissions from the written agreement, ABCO and Grossman maintain that Dorsey’s conduct demonstrated such control because Dorsey substantially influenced ABCO’s and Grossman’s decisions regarding licensing agreements and demand letters. The district court did not make findings regarding the parties’ conduct. But even assuming that Dorsey exercised a substantial degree of influence regarding licensing decisions, such conduct does not amount to joint control. Indeed, it would be expected, even necessary, for Dorsey to recommend certain courses of action as part of its legal representation. Encouraging litigation against one company but not another and recommending or discouraging settlement on particular terms are part of the normal course of an attorney’s counseling relationship with the client. These actions do not, however, establish control over the client’s property.

ABCO and Grossman point to one incident in which Dorsey arguably exerted influence beyond the scope of the attorney-client relationship. ABCO and Grossman maintain that Dorsey refused to participate in litigation with an allegedly infringing company but subsequently “insisted on attending during the negotiation of the royalty fee that [the company] would pay, and refused to accept the royalty rate that ABCO desired.” Again assuming that ABCO’s and Grossman’s claims are credible, this evidence also is insufficient to establish joint control. It is undisputed that Dorsey had chosen not to act as legal counsel in this matter. As such, Dorsey’s actions were necessarily outside the scope of the agreement and, therefore, are not pertinent to our analysis regarding the parties’ control. See Rosenberg v. Heritage Renovations, 685 N.W.2d 320, 332 (Minn.2004) (discussing parties’ conduct “under the ... agreement” in evaluating joint-control element of joint-venture analysis). Moreover, Dorsey’s influence apparently was limited in scope to the royalty negotiation and consistent with its compensation interest in the patent recovery. See Treichel v. Adams, 280 Minn. 132, 136, 158 N.W.2d 263, 266 (1968) (holding that creditor was not engaged in joint venture with debtor merely because of giving advice, paying bills, and taking other measures to protect debtor’s security). Thus, there is no competent evidence that Dorsey had joint control over ABCO’s patent business.

Likewise, there is no evidence that Dorsey was sharing in the profits of a joint venture. The agreement entitles Dorsey to 40 percent of the quarterly recovery from the patents with a cap of “3.33 times the standard matter value” of Dorsey’s time entries. But “[i]f the amount that one party receives is fixed, regardless of the success or failure of the enterprise, there is no joint venture.” Duxbury, 681 N.W.2d at 390 (holding that no joint venture existed when investor was “entitled to only a fixed percentage” of farmers’ surviving pigs, “regardless of whether the ... farm was profitable”). Under the agreement, Dorsey receives a portion of the “recovery,” which the agreement defines as “income.” Dorsey, therefore, agreed to a fee subject to the success of the patents without an offset for ABCO’s business expenses. See Black’s Law Dictionary 1226, 1319 (7th ed.1999) (defining “profit” as the “excess of revenues over expenditures,” and “revenue” as “gross income”). Thus, the provision in the agreement that entitles Dorsey to payment in the form of a fixed percentage of the patent recovery, whether that recovery was nothing or the millions of dollars anticipated, did not constitute profit sharing. Because the record is devoid of any competent evidence of joint control or profit sharing, the joint-venture argument is without merit.

In addition, we observe that the agreement falls within the plain language of the attorney-lien statute. Under the attorney-lien statute, a lien for compensation exists based on an underlying “agreement for compensation” between the attorney and client. Minn.Stat. § 481.13, subd. 1(a). Here, the agreement sets out the basis on which Dorsey “shall provide legal services” to ABCO and Grossman, expressly refers to them as “clients,” and refers to the 40-percent payment arrangement as payment of “attorneys’ fees.” Indeed, ABCO and Grossman acknowledge that they had an attorney-client relationship with Dorsey. Because the agreement provides for compensation to attorneys for their work in representing clients, the agreement falls within the plain language of section 481.13, and the district court correctly concluded that the attorney-lien statute applies to the agreement.

II.

ABCO and Grossman next challenge the district court’s interpretation of the agreement. The construction and effect of an unambiguous contract present questions of law, which we review de novo. Denelsbeck v. Wells Fargo & Co., 666 N.W.2d 339, 346 (Minn.2003). The primary goal of contract interpretation is to determine and enforce the intent of the contracting parties. Motorsports Racing Plus, Inc. v. Arctic Cat Sales, Inc., 666 N.W.2d 320, 323 (Minn.2003). When interpreting a written instrument, “the intent of the parties is determined from the plain language of the instrument itself.” Travertine Corp. v. Lexington-Silverwood, 683 N.W.2d 267, 271 (Minn.2004). We will not rewrite, modify, or limit the effect of a contract provision by a strained construction when the contractual provision is clear and unambiguous. Id.

A.

ABCO and Grossman first argue that the district court misinterpreted the agreement’s provisions regarding “recovery,” which they acknowledge is the baseline for determining the amount due. Specifically they argue that, under the agreement, they are permitted more deductions than the district court granted. But they do not contend that the agreement’s provision regarding deductions is ambiguous.

When there is an express agreement between an attorney and a client that sets the attorney’s compensation, the amount of the attorney’s lien for legal services is properly determined by reference to the agreement. Thomas A. Foster & Assocs. v. Paulson, 699 N.W.2d 1, 6 (Minn.App.2005). As such, we review de novo whether the district court properly interpreted the agreement when calculating the amount due under its terms. See Denelsbeck, 666 N.W.2d at 346 (stating that de novo standard of review applies to contract interpretation); Paulson, 699 N.W.2d at 4 (stating that de novo standard of review applies to method used to calculate amount of lien).

Since the parties stipulated to all other facts pertinent to calculating the amount due — ABCO’s gross recovery and the amount ABCO and Grossman remitted to Dorsey — the only dispute concerns the deductions. To determine the amount due, the fee provisions of the agreement govern. These provisions set Dorsey’s attorney fees in the amount of 40 percent of the net recovery from the Hasel patents. According to the terms of the agreement, the net recovery equals the recovery less “any amounts paid by [ABCO and Gross-man] for expenses and service charges.”

Regarding expenses and service charges, the agreement states: “This matter will require out-of-pocket expenses, such as court filing fees, local counsel fees, costs for depositions and expert witnesses, photocopying, costs of obtaining file histories, telephone and fax charges, and similar expense items.” Although this list is not exhaustive, the nature of the contemplated deductions is apparent from the examples listed. The plain language of the agreement demonstrates that the parties intended deductions only for expenses and service charges attributable to the legal work performed by Dorsey pursuant to the agreement.

ABCO and Grossman argue that $480,161 should be deducted in addition to the deduction of $858,350 to which Dorsey agreed. But ABCO and Grossman acknowledge that “[t]he majority of the approximately $480,161 in disputed deductions consist[s] of attorney fees that ABCO paid to law firms other than Dorsey, in part because Dorsey refused to continue to represent ABCO under the terms of the 1999 Agreement.” ABCO and Grossman also claim deductions for “expenses to fund licensing efforts” conducted by other law firms. Because these expenses are outside the scope of Dorsey’s representation under the agreement, they are not deductible from the recovery on which Dorsey’s compensation for legal services is based. Indeed, these fees would be deductible only if the agreement is interpreted in an internally inconsistent manner that is contrary to its plain language because the agreement expressly provides that Dorsey was under no obligation to undertake particular licensing efforts. The deduction of these fees, if permitted, would penalize Dorsey for exercising its contractual rights.

ABCO and Grossman also claim, as part of the $480,161 disputed deduction, $128,226 for legal fees that ABCO paid to Danville Engineering, Inc. as a condition of the voluntary dismissal of a patent action that ABCO initiated against Danville in federal court. The agreement plainly envisions deductions for routine litigation-related expenses. Opposing counsel’s attorney fees are not routine litigation-related expenses. See F.D. Rich Co. v. United States ex rel. Indus. Lumber Co., 417 U.S. 116, 126, 94 S.Ct. 2157, 2168, 40 L.Ed.2d 703 (1974) (describing general rule under which attorney fees are not ordinarily recoverable in federal litigation, absent statute or enforceable contract providing for them). Thus, the Danville fees are outside the scope of the agreement.

Because the additional expenses ABCO and Grossman claim are not routine litigation expenses related to Dorsey’s legal representation, they are outside the scope of the agreement. Accordingly, the district court correctly denied the disputed deductions.

B.

ABCO and Grossman next challenge the district court’s entry of judgment for $126,236.23 as compensation for Dorsey’s patent-prosecution work. Arguing that the relevant language in the agreement is ambiguous, they assert that the district court erred by interpreting the agreement to exclude Dorsey’s patent-prosecution work.

Whether a contract provision is ambiguous is a question of law, which we review de novo. Denelsbeck, 666 N.W.2d at 346. “A contract is ambiguous if, based upon its language alone, it is reasonably susceptible of more than one interpretation.” Id. (quotation omitted).

The plain language of the agreement demonstrates its limited scope. The first paragraph of the agreement states that the agreement “sets out the basis on which [Dorsey] shall provide legal services ... for the purposes of patent enforcement, patent exploitation, and patent license efforts.” By its terms, the agreement expressly anticipates Dorsey’s additional, separate representation and excludes from the agreement “legal services [Dorsey] may provide to [ABCO and Grossman] in matters unrelated to the patent enforcement, patent exploitation, and patent license efforts” pertaining to the Hasel patents. The agreement explicitly refers to several types of representation and excludes all other matters. By operation of the plain language of the agreement, patent-prosecution work is excluded.

Contrary to the argument of ABCO and Grossman, the plain language of the agreement is unambiguous. It is susceptible of only one meaning. Id. Accordingly, we decline to address evidence of the parties’ conduct after signing the agreement, which both parties urge us to consider. See id. at 346-47 (requiring courts to give unambiguous contract language plain and ordinary meaning); cf. Ecolab, Inc. v. Gartland, 537 N.W.2d 291, 295 (Minn.App.1995) (permitting consideration of extrinsic evidence to resolve ambiguity).

III.

Finally, ABCO and Grossman argue that the district court erroneously applied the attorney-lien statute. Interpretation of the attorney-lien statute presents a question of law, which we review de novo. Paulson, 699 N.W.2d at 4.

When interpreting a statute, we must “ascertain and effectuate the intention of the legislature.” Minn.Stat. § 645.16 (2006). In doing so, we first determine whether the statute’s language, on its face, is ambiguous. Am. Tower, L.P. v. City of Grant, 636 N.W.2d 309, 312 (Minn.2001). A statute’s language is ambiguous only when its language is subject to more than one reasonable interpretation. Amaral v. Saint Cloud Hosp., 598 N.W.2d 379, 384 (Minn.1999). We construe words and phrases according to their plain and ordinary meaning. Frank’s Nursery Sales, Inc. v. City of Roseville, 295 N.W.2d 604, 608 (Minn.1980); see also Minn.Stat. § 645.08(1) (2006) (providing that words are construed according to their common usage).

A.

ABCO and Grossman first argue that the district court erred by awarding personal judgments against them after a summary attorney-lien proceeding. Dorsey counters that the attorney-lien statute not only authorizes personal judgments but also entitles a lien claimant to an unqualified judgment for “the amount due.” On that basis, Dorsey argues that the district court erred by limiting the scope of the judgment against ABCO and Grossman.

The parties’ arguments raise two issues: (1) the purpose and scope of a summary proceeding under Minn.Stat. § 481.13, subd. 1(c); and (2) the type of judgment that must result, if any, from such a proceeding. We have previously held that, because of the summary nature of a proceeding under section 481.13, subdivision 1(c), that proceeding is not the appropriate forum for addressing a claim of legal malpractice. Paulson, 699 N.W.2d at 7-8. But to address the intended purpose and result of the summary proceeding under section 481.13, subdivision 1(c), we look to the language and history of the statute.

An attorney lien traces its origins to common law, but the Minnesota legislature “has long since preempted this field and has substituted statutory procedures.” Boline v. Doty, 345 N.W.2d 285, 288 (Minn.App.1984). An attorney lien is an equitable lien created to prevent a client from benefiting from an attorney’s services without paying for those services. Paulson, 699 N.W.2d at 5. An attorney, therefore, “has a lien for compensation whether the agreement for compensation is expressed or implied.” Minn.Stat. § 481.13, subd. 1(a). The lien granted under subdivision 1(a), is an inchoate lien that attaches at the commencement of the legal representation to the cause of action or the client’s interest in “any money or property involved in or affected by any action or proceeding in which the attorney may have been employed.” Id.; Paulson, 699 N.W.2d at 5.

To make the lien choate, an attorney may petition the district court to summarily establish the lien. Minn.Stat. § 481.13, subd. 1(c); Paulson, 699 N.W.2d at 5-6; see also Black’s Law Dictionary 934 (7th ed.1999) (defining “choate lien” as one in which lienholder, property, and monetary amount are established, leaving nothing else to be done to make it enforceable). Establishment of the lien is the district court’s recognition of the client’s debt to the attorney and effects a “hold or claim on the [client’s] property as security for [the] debt.” Boline, 345 N.W.2d at 288. If the client does not pay the attorney the amount due, that property is subject to forfeiture. Id. at 289 (defining attorney lien as “a claim against an interest in property that may result in the deprivation of that property”). Enforcement of the attorney lien forecloses on the client’s interest in the property to which the lien is attached when the client fails to satisfy the debt that the lien secures. Id. at 290; cf. Minn.Stat. § 514.10 (2006) (describing foreclosure of mechanic’s lien as enforcement of the lien). As such, the lien may be enforced in a variety of ways, including through the ordered sale or mortgage of the property to which the lien attaches. Boline, 345 N.W.2d at 290.

Last amended in 2002, 2002 Minn. Laws ch. 403, § 2, at 1707-08, the current attorney-lien statute provides solely for a summary proceeding for the establishment of an attorney lien:

A lien provided by paragraph! ](a) • • • may be established, and the amount of the lien may be determined, summarily by the [district] court under this paragraph on the application of the lien claimant....
Judgment shall be entered under the direction of the [district] court, adjudging the amount due.

Minn.Stat. § 481.13, subd. 1(c). The statute does not address enforcement of the lien except to proscribe such enforcement beyond the statute of limitations. See Minn.Stat. § 481.13, subd. 3 (setting forth applicable time periods for enforcing attorney liens against real property).

This omission of any substantive reference to lien enforcement is significant when considered in light of the prior version of the statute, which provided:

The liens ... may be established, and the amount thereof determined, by the [district] court, summarily, in the action or proceeding ... or such liens may be enforced, and the amount thereof determined, by the [district] court, in an action for equitable relief brought for that purpose.

Minn.Stat. § 481.13(3) (2000) (emphasis added). Under the prior version of the statute, an attorney seeking to collect unpaid legal fees could petition the district court in the action or proceeding in which the attorney was representing the client to summarily establish an attorney lien; or the attorney could initiate an equitable action and request establishment and enforcement of the attorney lien. See In re L-tryptophan Cases, 518 N.W.2d 616, 622 (Minn.App.1994) (holding that separate equitable proceeding could be used to establish and enforce attorney lien pursuant to Minn.Stat. § 481.13(3) (1992)).

When it amended the statute in 2002, the legislature removed the language permitting an enforcement proceeding under the statute but maintained the establishment proceeding. 2002 Minn. Laws ch. 403, § 2, at 1707-08. The attorney lien continues to be security for a debt. Boline, 345 N.W.2d at 288. As such, the establishment of a lien pursuant to section 481.13, subdivision 1(c), enables the attorney to pursue any available methods for foreclosing on a security interest if the client does not satisfy the underlying debt. See id. at 290 (identifying court-ordered sale or mortgage as possible enforcement methods); cf. Minn.Stat. § 514.10 (describing foreclosure of mechanic’s lien as enforcement of lien).

In light of the statutory amendment, the plain language of the current version of the attorney-lien statute authorizes the district court only to summarily establish the lien. Minn.Stat. § 481.13, subd. 1(c) (2006). It no longer authorizes the district court to enforce the lien in the summary proceeding; rather, it is silent as to the proper forum and means for enforcing the lien. Id. But see Paulson, 699 N.W.2d at 8 (stating in dictum that statute provides for “a summary proceeding to establish and enforce a lien”). In addition, the attorney-lien statute directs that, to “establish” a lien, the district court must identify the subject property. See Minn. Stat. § 481.13, subd. 1(a) (describing possible subjects of attorney lien); Boline, 345 N.W.2d at 289 (describing an attorney lien as “an interest in property”). Thus, when a lien claimant petitions the district court under section 481.13, subdivision 1(c), the district court must determine (1) the lien-holder; (2) the subject of the lien as defined by the attorney-lien statute; and (3) the amount due. Minn.Stat. § 481.13, subd. 1(c).

The resulting judgment is in the nature of a declaratory judgment that establishes the lien, as defined by the district court with regard to the lienholder, the subject, and the amount. Cf Minn. Stat. §§ 555.01, 555.02 (2006) (describing district court’s power to “declare rights, status, and other legal relations” affected by contract or statute). Accordingly, Dorsey’s argument that the attorney-lien statute authorizes an unqualified personal judgment, independent of the action or proceeding in which the attorney provided representation, is without merit.

Here, the district court has essentially complied with the attorney-lien statute’s requirement with regard to the $586,312.20 judgment. Although the district court improperly characterized the judgment as a personal judgment against ABCO and Grossman, the district court also determined the amount due and identified the proceeds from the Hasel patents as the source of payment. By undertaking the steps necessary to establish the lien, the district court effectively established an attorney lien in favor of Dorsey and against ABCO’s and Grossman’s interests in the Hasel patents’ proceeds and adjudged the amount due. And because both ABCO and Grossman were parties to the agreement and received the benefit of Dorsey’s representation, contrary to ABCO’s and Grossman’s argument, the lien against both ABCO’s and Grossman’s interests in the patent proceeds is proper.

In contrast, the $126,236.23 judgment against ABCO for the patent-prosecution work is an unqualified personal judgment. Although the district court determined the amount due, it did not identify any property as the subject of the lien. As such, the district court erred by awarding Dorsey an unqualified personal judgment against ABCO. We, therefore, remand to the district court for determination of the proper subject of the lien, as defined by section 481.13, subdivision 1(a), and for entry of a judgment establishing a lien in accordance with the requirements identified herein.

B.

ABCO and Grossman also argue that the district court erred by declining to consider their legal-malpractice claim in the attorney-lien proceeding. This argument is without merit. The attorney-lien statute sets forth a summary proceeding to establish an attorney lien. Minn.Stat. § 481.13, subd. 1(c). “Consideration of complex questions of professional negligence in the lien action is contrary to the legislative intent expressed in the language of the statute.” Paulson, 699 N.W.2d at 8. Without addressing the appropriateness of bringing a legal-malpractice action, we observe that the establishment of an attorney lien in favor of Dorsey does not prevent ABCO and Grossman from bringing such an action in a separate proceeding. Id. Indeed, a separate proceeding, when available, is preferable to the summary proceeding afforded under section 481.13. Id. As such, the district court did not err by declining to address ABCO’s and Grossman’s legal-malpractice claim in the summary attorney-lien proceeding.

DECISION

The parties’ relationship was not a joint venture, and application of the attorney-lien statute was appropriate. The district court correctly interpreted the agreement with regard to the deductions and the scope of Dorsey’s representation. The summary attorney-lien proceeding was not the appropriate forum to address ABCO’s and Grossman’s legal-malpractice claim. Although the district court erred by directing entry of personal judgments against ABCO and Grossman, we affirm the $586,312.20 judgment as modified to eliminate confusion regarding the nature and effect of the judgment. In doing so, the modification establishes an attorney lien in the amount of $586,312.20 in favor of Dorsey and against ABCO’s and Grossman’s interests in the proceeds of the Hasel patents. Because the district court correctly determined $126,236.23 as the amount of the attorney lien for patent-prosecution work but erroneously directed entry of a personal judgment and thereby failed to identify the property subject to that attorney lien, we affirm in part, reverse in part, and remand for identification of the property subject to the attorney lien for the patent-prosecution work. The decision whether to reopen the record on remand rests within the district court’s discretion.

Affirmed as modified in part, reversed in part, and remanded.

      . Hasel also signed the agreement in his individual capacity and was, therefore, a party to the agreement. But Hasel is not a party to the action resulting in this appeal.

      . Patent prosecution is the process of securing patent approval from the USPTO. Actions regarding patent infringement and enforcement, by comparison, are civil actions pursued in federal court; the USPTO has no jurisdiction over questions of infringement and enforcement. http://www. usp-to.gov/web/offices/pac/doc/general/in-dex.html# patent.

      . At oral argument, counsel for ABCO and Grossman argued that the district court had erroneously identified the proceeds of the patents as the subject of the lien flowing from the agreement. Rather, counsel suggested, the agreement pertained to various litigation and licensing efforts, and the lien should have applied to the settlement and licensing agreements resulting from Dorsey's representation. ABCO and Grossman were free to present this argument to the district court but did not do so. Accordingly, the argument is waived on appeal. Thiele v. Stick, 425 N.W.2d 580, 582 (Minn.1988).

      . ABCO and Grossman also argue that a personal judgment against Grossman was improper and unfair. Because we conclude that the statute does not authorize personal judgments at all, we need not specifically address this argument. But we observe that, because they do not dispute that Grossman signed the agreement in his individual capacity and received the benefit of Dorsey’s representation, the district court properly made Grossman's interest in the patent proceeds, if any, subject to the lien.


author: JOHNSON, Judge.

text:
    STATE of Minnesota, Respondent, v. Kelly Marie RASMUSSEN, Appellant.
    No. A07-431.
    Court of Appeals of Minnesota.
    May 27, 2008.

      Lori Swanson, Attorney General, St. Paul, MN; and Rolf H. Nycklemoe, Fergus Falls City Attorney, Fergus Falls, MN, for respondent.
    Lawrence Hammerling, Chief Appellate Public Defender, Paul J. Maravigli, Assistant Public Defender, St. Paul, MN, for appellant.
    Considered and decided by ROSS, Presiding Judge; LANSING, Judge; and JOHNSON, Judge.
   OPINION

JOHNSON, Judge.

After being stopped by a Fergus Falls police officer, Kelly Marie Rasmussen was charged with third-degree driving while impaired. She moved to suppress evidence arising from the traffic stop, but the district court denied the motion. The case was submitted to the district court on stipulated facts pursuant to State v. Lothenbach, 296 N.W.2d 854 (Minn.1980), and the district court found Rasmussen guilty.

On appeal, Rasmussen argues both that she did not waive her right to a jury trial and that the district court erred when it denied her motion to suppress evidence. We conclude that Rasmussen did not waive her right to a jury trial and, thus, reverse her conviction and remand to the district court. We further conclude, in light of our resolution concerning her right to a jury trial, that she is not entitled at this time to appellate review of the district court’s denial of her motion to suppress evidence.

FACTS

On April 6, 2006, at approximately 2:00 a.m., Officer Andrew A. Olson of the Fergus Falls Police Department was driving behind a vehicle when he noticed that its high, center-mounted brake light did not work when the driver applied the brakes. Thus, Officer Olson stopped the car, which was being driven by Rasmussen. When Officer Olson approached Rasmussen, he noticed the odor of alcohol coming from inside the car. He also noticed that Rasmussen had bloodshot and watery eyes, and he detected a slight slowness to her speech. Officer Olson administered a preliminary breath test, which revealed an alcohol concentration of 0.144. Rasmussen was arrested and transported to the Otter Tail County Detention Facility, where she was read the implied-consent advisory. She consented to a breath test, which registered an alcohol concentration of 0.14. Rasmussen was charged with two counts of third-degree driving while impaired (DWI), in violation of MinmStat. § 169A.20, subd. 1(1), (5) (2004), in light of a prior DWI conviction.

Prior to trial, Rasmussen moved to suppress evidence obtained as a result of Officer Olson’s stop of her car. She argued that the traffic stop was improper because she had two operable brake lights, which she maintains is sufficient to comply with MinmStat. § 169.57, subd. 1(a) (2004), notwithstanding the fact that her third brake light was inoperable. The district court denied Rasmussen’s motion to suppress.

The case was submitted to the district court on stipulated facts pursuant to State v. Lothenbach, 296 N.W.2d 854 (Minn.1980). The district court issued its written findings of fact, conclusions of law, and order, finding Rasmussen guilty on both counts. The district court sentenced her to 180 days in jail, with work- and school-release privileges, with 150 days stayed for six years. Rasmussen appeals.

ISSUES

I. Did Rasmussen waive her right to a jury trial?

II. May Rasmussen obtain accelerated appellate review of the district court’s denial of her pretrial motion to suppress evidence in light of her successful argument that she did not waive her right to a jury trial?

ANALYSIS

I.

The United States and Minnesota constitutions provide a criminal defendant with the right to a jury trial. U.S. Const, amend. VI; Minn. Const, art. I, § 6. In Minnesota state courts, “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).

Rasmussen argues that she did not waive her right to a jury trial. There is nothing in the trial transcript reflecting a waiver of her right to a jury trial. The prosecutor conducted a colloquy to elicit Rasmussen’s waivers of her rights to testify at trial, to require the state to call witnesses to prove its case, to cross-examine the state’s witnesses, and to call witnesses favorable to her defense. But the prosecutor omitted any mention of the right to a jury trial. Thus, the district court record falls far short of the requirements of Minn. R.Crim. P. 26.01, subd. l(2)(a), not to mention the constitutional requirements that a waiver of the right to a jury trial be “knowing, intelligent and voluntary,” State v. Ross, 472 N.W.2d 651, 653 (Minn.1991). Rasmussen’s attorney’s invocation of the Lothenbach procedure is not a substitute for Rasmussen’s valid personal waiver. State v. Sandmoen, 390 N.W.2d 419, 423 (Minn.App.1986).

The state argues only that the district court was not required to obtain a waiver of the right to a jury trial because that right is not mentioned in Minn. R.Crim. P. 26.01, subd. 3, which provides for a trial on stipulated facts. But this argument is inconsistent with the district court record. Rasmussen’s attorney began the trial by stating, “Your Honor, we’re going to submit this as a Lothen-bach.” In State v. Lothenbach, 296 N.W.2d 854 (Minn.1980), the supreme court approved a procedure similar in function to a conditional guilty plea, which may be utilized if a defendant, among other things, “waive[s] his right to a jury trial.” Id. at 857. Furthermore, in an opinion issued after this case was fully briefed, this court held that a Lothenbach procedure requires a waiver of both the right to a jury trial and all rights specified in subdivision 3 of rule 26.01. State v. Knoll, 739 N.W.2d 919, 921 (Minn.App.2007). Thus, the district court was re quired to obtain a waiver of Rasmussen’s right to a jury trial.

In sum, Rasmussen did not waive her right to a jury. Thus, her conviction must be reversed, and the case must be remanded.

II.

Rasmussen’s second argument on appeal is that the district court erred by denying her pretrial motion to suppress evidence. This argument raises the procedural question whether we may address Rasmussen’s Fourth Amendment argument in light of our conclusion that she did not waive her right to a jury trial.

The general rule in criminal cases is that a defendant may obtain appellate review after a conviction and the imposition of a sentence. Minn. R.Crim. P. 28.02, subd. 2(1). Accordingly, the traditional rule was that a defendant could not appeal a pretrial ruling, such as the denial of a motion to suppress evidence, and could not reserve such issues for appeal by pleading guilty. See McLaughlin v. State, 291 Minn. 277, 280-81, 190 N.W.2d 867, 870-71 (1971). As the United States Supreme Court stated, “a guilty plea represents a break in the chain of events which has preceded it in the criminal process. When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea.” Tollett v. Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 1608, 36 L.Ed.2d 235 (1973). Thus, “defendants wishing to obtain appellate review of pretrial decisions to suppress evidence [did] not [have] the option of pleading guilty but [were] forced to enter not guilty pleas and go to trial.” Lothenbach, 296 N.W.2d at 857.

In Lothenbach, however, the supreme court recognized an exception to the traditional rule. The court held that a defendant could challenge pretrial suppression rulings without going through a complete trial by “entering] a plea of not guilty, waiv[ing] his right to a jury trial, and then stipulating] to the prosecution’s case.” Id. (emphasis added). If, on appeal, a defendant utilizing this procedure were successful in obtaining the suppression of evidence, on remand the “defendant would be entitled to withdraw his plea, plead not guilty, and either stipulate to the state’s case or put the state to the expense of a trial.” Id. at 858.

Rasmussen invoked the Lothen-bach procedure in the district court. But her desire to obtain appellate review of the district court’s pretrial suppression ruling is inconsistent with her contemporaneous assertion of her right to a jury trial. Waiving the right to a jury trial is an express condition of the Lothenbach procedure and, thus, a prerequisite to accelerated appellate review of a pretrial suppression ruling. Id. at 857. By arguing that she did not waive her right to a jury trial, Rasmussen has withdrawn one of the conditions of immediate appellate review of the suppression issue. In practical terms, she seeks to have it both ways. After entering into a quid pro quo agreement with the prosecution and the judiciary, she now seeks to renounce the quid but retain the quo.

In prior cases, this court has resolved this procedural issue in different ways. In State v. Knoll, 739 N.W.2d 919 (Minn.App.2007), we stated that the district court’s denial of a suppression motion was “not properly before this court” because we had resolved the defendant’s first argument by concluding that he had not validly waived certain rights pursuant to rule 26.01. Id. at 922. But in State v. Bunce, 669 N.W.2d 394 (Minn.App.2003), review denied (Minn. Dec. 16, 2003), after concluding that the defendant did not properly waive his right to a jury trial, we nonetheless reviewed the district court’s denial of a suppression motion “in the interests of judicial economy ... because of the effect a ruling on that issue will have on the case on remand.” Id. at 398. Similarly, in State v. Bolduc, 514 N.W.2d 607 (Minn.App.1994), we reviewed a suppression ruling after concluding that the defendant did not validly waive his right to a jury trial. Id. at 611-12.

In each of these three cases, this court did not expressly consider in any detail whether it is proper in this situation to consider a pretrial suppression ruling if the appellant’s right to a jury trial was violated. Having now squarely considered the question, we conclude that appellate review of the suppression ruling is inappropriate at this time. Rasmussen has not agreed to one of the necessary conditions of accelerated appellate review of the suppression issue. To review the denial of her pretrial suppression motion would be inconsistent with the supreme court’s decision in Lothenbach. More specifically, to allow Rasmussen to obtain appellate review of both issues she has raised on appeal would create a broader exception to the traditional rule of McLaughlin than was recognized in Lothenbach.

Thus, we will not consider Rasmussen’s argument that the district court erred by denying her pretrial motion to suppress evidence. See Knoll, 739 N.W.2d at 922. On remand, Rasmussen may consider again whether she wishes to be tried by a jury of her peers or wishes to waive that right.

DECISION

Rasmussen did not waive her right to a jury trial, pursuant to Minn. R.Crim. P. 26.01, subd. l(2)(a), and State v. Lothenbach, 296 N.W.2d 854 (Minn.1980). Thus, her conviction must be reversed, and the case must be remanded.

A criminal defendant may obtain appellate review of a district court’s pretrial, denial of a motion to suppress evidence only pursuant to the procedure approved in Lothenbach. One of the prerequisites of the Lothenbach procedure is the valid waiver of the right to a jury trial. Because we have concluded that Rasmussen did not waive her right to a jury trial, we may not review the suppression ruling at this time.

We have reviewed and considered Rasmussen’s supplemental pro se brief, and we conclude that it does not contain any additional grounds for reversal.

Reversed and remanded.

      . At the time of Rasmussen’s plea hearing, the Lothenbach procedure was reflected in two provisions within Minn. R.Crim. P. 26.01— subdivision l(2)(a), which concerns waivers of the right to a jury trial, and subdivision 3, which concerns trials on stipulated facts. Knoll, 739 N.W.2d at 922. Effective April 1, 2007, the Lothenbach procedure is reflected in a new subdivision 4, which is captioned "Stipulation to Prosecution’s Case to Obtain Review of a Pretrial Ruling.” The rules committee's comments state, after referring to Lothenbach, that subdivision 4 "supersedes the case as to the procedure for stipulating to the prosecution’s case to obtain review of a pretrial ruling.” Minn. R.Crim. P. 26.01, subd. 4 cmt.