author: SNELL, Justice.

text:
    Michael L. WHALEN, Appellant, v. John E. CONNELLY, J. Edward Connelly Associates, Inc., Successor to Della III, Inc., President Casinos, Inc., and PRC-Iowa, Inc., Appellees.
    No. 98-2070.
    Supreme Court of Iowa.
    Dec. 20, 2000.
    As Amended on Denial of Rehearing Jan. 31, 2001.

      Mark McCormick of Belin Lamson McCormick Zumbach Flynn, P.L.C., Des Moines, and Martha L. Shaff and Jean Dickson Feeney of Betty, Neuman & McMahon, Davenport, for appellant.
    R. Richard Bittner and Jeffrey S. Bitt-ner of Carlin, Hellstrom & Bittner, Davenport, and Lawrence C. Friedman and Fernando Bermudez of Thompson Coburn L.L.P., St. Louis, Missouri, for appellees.

       Senior judge assigned by order pursuant to Iowa Code section 602.9206 (1999).

   SNELL, Justice.

This is the third time these parties have been to the Iowa Supreme Court. This appeal involves enforcing the judgment from the first decision made by this court. Whalen v. Connelly, 545 N.W.2d 284 (Iowa 1996) (Whalen I). The judgment of the district court on the appeal is reversed. The judgment of the district court on the cross-appeal is affirmed.

I. Factual Background and Proceedings

Whalen I involved a dispute over how much Michael L. Whalen should be paid for his share of the riverboat gambling partnership with the defendants, collectively referred to as The Connelly Group, L.P. (TCG). Id. at 290-92. The district court held in a declaratory judgment that Whalen was entitled only to what TCG had originally offered to tender to him in 1993 — $61,531.45 and 55,904 shares of stock. Id. at 292. Whalen appealed the judgment to our court arguing he was entitled to a more favorable buyout under the partnership agreement. We affirmed the declaratory judgment on March 20, 1996. Id. at 292, 296.

While the appeal was pending, Whalen sought the money and shares from TCG. In a letter of demand, Whalen informed TCG no appeal was pending. TCG knew this to be incorrect because it had already received notice of the appeal. TCG refused to surrender the money and stock because of the pendency of the appeal. Whalen’s appeal to this court in Whalen I was unsuccessful. By the time Whalen’s stock was delivered to him in May 1996, it had depreciated substantially. For this reason, Whalen filed the present and third appeal, which we will refer to as Whalen III, claiming a division of TCG illegally converted his property under the Iowa tender law, Iowa Code chapter 538, by keeping it until the appeal was. resolved.

In the interest of providing a complete background we mention Whalen’s second appeal briefly. Whalen v. Connelly, 593 N.W.2d 147 (Iowa 1999) (Whalen II). This was a derivative claim. Whalen was again unsuccessful. Whalen II has no relation to the present facts or suit.

Whalen III revolves around Whalen’s assertion that J. Edward Connelly Associates, Incorporated and PRC-Iowa, Incorporated, collectively referred to here as “Connelly,” committed the tort of conversion by refusing to deliver the judicially determined buyout to Whalen pending his appeal in Whalen I. Connelly filed a counterclaim which charged Whalen with malicious prosecution for his suit in Whalen I. This appeal involves Whalen as the Appellant/Cross-Appellee and Connelly as the Appellee/Cross-Appellant.

A. Whalen’s Claim and the District Court’s Disposition

Whalen argues that under the Iowa tender law Connelly should have honored his demand for the stock while the Whalen I appeal was pending. See Iowa Code §§ 538.4, .7 (1997). Whalen sought delivery of the stock on January 16, 1995. At that time, the stock’s value was $9.50 per share. The stock’s value plummeted to $2.37 per share by April 1, 1996. Because the stock depreciated after the time Whalen made his demand, which Connelly refused, Whalen claims Connelly committed the tort of conversion. Whalen seeks damages for this reduction in market value plus interest.

At the district court, Whalen filed a motion for partial summary judgment asking the court to find that as a matter of law the Iowa tender law applied, and that Connelly should have immediately paid Whalen upon his demand. Its failure constituted conversion. Whalen did not seek summary judgment on the issue of the amount of damages. Connelly filed its own motion for summary judgment on the conversion issue. The court denied Whalen’s motion in favor of Connelly’s resistance and granted Connelly’s motion for summary judgment.

The district court found the appeal filed by Whalen prevented him from obtaining his property. It held the conversion claim unwarranted, as Whalen had placed ownership and value of the property in issue by filing an appeal. In his appeal in Whalen I, Whalen sought more money for his property interest and was less concerned with obtaining stock ownership. As such, the district court recognized: “Had [Whalen] been successful in his appeal, he may not have been entitled to any stock....” Therefore, Whalen was precluded from seeking satisfaction until he dismissed his appeal. The district court was persuaded that Whalen’s appeal attacked the very judgment he was seeking to collect. Finally, the court concluded that the Iowa tender rule did not apply because it was dealing with a Delaware partnership.

B. Connelly’s Counterclaim and the District Court’s Disposition

Connelly filed a counterclaim against Whalen alleging the Whalen I suit constituted malicious prosecution. Connelly argued that discovery documents showed Whalen knew his claim in Whalen I had no merit. To show the special damages Iowa requires in a malicious prosecution suit, Connelly produced its expenses totaling more than one million dollars to defend Whalen I.

Whalen made a motion for summary judgment against this counterclaim. He argued that the mere cost of the suit was not enough to show special damages. The district court granted this motion in favor of Whalen. It -found Connelly could not show any special damages that would support a malicious prosecution suit. On appeal, Connelly alleges it has other injury, but it failed to plead the specifics of those injuries or develop them in detail through discovery.

II. Scope and Standard of Review

The appeal and cross-appeal come to us from rulings granting summary judgment. We review a grant or denial of summary judgment for correction of errors at law. Iowa R.App. P. 4; Whalen II, 593 N.W.2d at 152. Summary judgment is proper when no material dispute exists. If reasonable minds could disagree, summary judgment is improper. Dickerson v. Mertz, 547 N.W.2d 208, 212 (Iowa 1996). As such, the court will affirm if the entire record including pleadings, discovery, and affidavits on file shows there is no genuine issue of material fact such that the moving party is entitled to judgment as a matter of law. Iowa R. Civ. P. 287(c); Whalen II, 593 N.W.2d at 152.

Our determination involves deciding whether the district court correctly applied the law. See Krause v. Krause, 589 N.W.2d 721, 724 (Iowa 1999). Under this standard, we will review the grant of summary judgment on Connelly’s motion against Whalen’s conversion claim in a light most favorable to Whalen. We will review the grant of summary judgment on Whalen’s motion against Connelly’s malicious prosecution claim in the light most favorable to Connelly.

III. Issues on Appeal

A. Conversion — Appeal

The issue presented on direct appeal is whether Whalen can successfully bring a conversion claim against Connelly for failing to turn over Whalen’s property upon his demand resulting in a great depreciation of worth when (1) an appeal filed by Whalen was pending which placed the value and possession of the property in issue; (2) the Iowa tender law may require Con-nelly to turn the property over; but (3) Iowa law may not apply because Connelly is a Delaware partnership.

1. Procedural Barriers

Connelly argues this claim is precluded by our decision in Whalen I. The applicable issue in Whalen I dealt with what Whalen was entitled to as a buyout from TCG. Whalen I, 545 N.W.2d at 292. That amount has been judicially decided. The issue here is whether Connelly violated the Iowa tender law, thereby committing conversion, when it refused to deliver the property demanded by Whalen during the pendency of the appeal.

Claim preclusion is generally implicated where there has been a full and fair opportunity to litigate the claim — the claim was litigated, or it could have been, but was not. See Iowa Elec. Light & Power Co. v. Lagle, 430 N.W.2d 393, 397 (Iowa 1988); Tigges v. City of Ames, 356 N.W.2d 503, 508 (Iowa 1984). “A second claim is likely to be considered precluded if the acts complained of, and the recovery demanded, are the same,, or when the same evidence will support both actions.” Geneva Corp. Fin. v. G.B.E. Liquidation Corp., 598 N.W.2d 331, 334 (Iowa App.1999) (citing Riley v. Maloney, 499 N.W.2d 18, 20 (Iowa 1993); Leuchtenmacher v. Farm Bureau Mut. Ins. Co., 460 N.W.2d 858, 860 (Iowa 1990); B & B Asphalt Co. v. T.S. McShane Co., 242 N.W.2d 279, 286 (Iowa 1976)). Moreover, claim preclusion is implicated when “the claim for relief litigated in the previous proceeding was the same as the claim of the present action.” Id. (citing West v. Wessels, 534 N.W.2d 396, 398 (Iowa 1995)).

The present claim deals with property owed to Whalen and an alleged tort that arose after the commencement of Whalen I. The facts of the conversion are different from those presented in Whalen I. Whalen is not challenging the judgment in Whalen I. The tort of conversion could never have been made an issue in the earlier case. Whalen’s conversion claim is not precluded by our disposition in Whalen I.

We likewise dispose of Connelly’s allegation that Whalen is barred from bringing his conversion claim because of the doctrine of election of remedies. ‘We note that this doctrine is designed to prevent double recovery for a single injury, not to prevent recourse to alternative remedies.” Hartford-Carlisle Sav. Bank v. Van Zee, 569 N.W.2d 386, 389 (Iowa 1997) (citing 25 Am.Jur.2d Election of Remedies § 2, at 763-64 (1996)). Further, “Iowa has recognized this doctrine is not favored by the courts and mil not be applied in the absence of evidence of substantial prejudice.” Id. Whalen’s conversion claim does not create a double recovery-type situation, nor can Connelly point to any prejudice because it was Connelly who chose to withhold the stock rather than deliver it when requested.

Connelly also argues that the Iowa tender law does not apply to his claim because Connelly is a Delaware corporation. The two partnership agreements at issue in Whalen I both contained choice of law provisions. See 59A Am.Jur.2d Partnership § 32, at 251 (1987) (“A partnership agreement may contain an effective choice-of-law provision designating the governing law under which its terms must be applied and construed ....” (emphasis added)). We considered Delaware law in both earlier appeals. Whalen II, 593 N.W.2d at 152-58; Whalen I, 545 N.W.2d at 291-93. In Whalen I and Whalen II we were interpreting the actual partnership agreement and determining liability based on the internal workings of the partnership. Whalen I, 545 N.W.2d at 291; Whalen II, 593 N.W.2d at 150. However, the present dispute has nothing to do with the agreements themselves, but rather, the procedure utilized in Iowa for collecting a judicially-determined debt while an appeal is pending. One legal authority has explained:

Where the liability of a partnership or partner is predicated on a partnership act, like the ... commission of a tort, questions of liability are governed by the law of the place where the act was done rather than by the law of the place where the partnership was organized.

59A Am.Jur.2d Partnership § 33, at 251; see also Farmers’ & Merchs.’ Nat’l Bank v. Anderson, 216 Iowa 988, 991-99, 250 N.W. 214, 216-19 (1933) (holding that contract disputes not related to the partnership’s organization are governed by the law of the state where executed). Because this is a question of whether a tort was committed by Connelly and not a question of the intricate workings of the partnership, the state where the tort was committed should govern. Accordingly, we do not perceive any circumstance that would have us pass judgment on the partnership agreements or the internal organization of the partnership in the present suit. As such, Iowa law applies to this tort action.

2. Merits of Conversion — Iowa Tender Law

Under the Iowa tender statute: “A tender of the property, ... discharges the maker from the contract, and the property becomes vested in the payee ..., and the payee ... may maintain an action therefore as in other cases.” Iowa Code § 538.4. The statute further states:

When the tender of money or property is not accepted by the party to whom it is made, the party making it may, if that party sees fit, retain it in possession; but if afterwards the party to whom the tender was made concludes to accept it and gives notice thereof to the other party, and the subject of the tender is not delivered to the accepting party within a reasonable time, the tender shall be of no effect.

Id. § 538.7. Whalen argues that when Con-nelly offered to buy Whalen out for $61,538.45 and 55,904 shares of stock in 1993 this created a tender and “the property [became] vested in [Whalen].” Id. § 538.4. Wdien Whalen initially rejected this tender and sought a judicial determination, it was proper for Connelly to keep the property. See id. § 538.7. Later, when Whalen decided to accept the tender, and it was not delivered, the stock vested back to Connelly from Whalen, for purposes of bearing the risk of loss. See id. Because the initial tender by Connelly was then of no effect, Whalen argues Connelly bore the risk of decreased value. We agree.

Whalen seeks recovery under the theory of conversion. Whether enforcement of the Iowa tender statute is through the claim of conversion is an issue of first impression. Whalen cites one legal authority in relation to tender and conversion: “Where the goods are withheld, the tenderee may maintain replevin or trover therefor as he may elect.” 86 C.J.S. Tender § 45, at 449 (1997). Trover or conversion is described as “the wrongful control or dominion over another’s property contrary to that person’s possessory right to the property.” Condon Auto Sales & Serv., Inc. v. Crick, 604 N.W.2d 587, 593 (Iowa 1999).

When tender is refused, the tenderer becomes a bailee, “and it is his duty as such to take care of the property” at the tenderee’s expense. 86 C.J.S. Tender § 45, at 449. However, if the tenderer wrongfully withholds the property from its owner upon his demand, the tenderee no longer bears the risk. Iowa Code § 538.7. Accordingly, if the tenderer allows the goods to be damaged, “this will not affect the result that the debt is paid by the tenderer.” 89 C.J.S. Tender § 45, at 449. Such a scenario can clearly be aligned with the tort of conversion. Although the effect of the tender is destroyed, the property still belongs to the tenderee, and the debt must be satisfied by the tenderer regardless that the value has diminished.

The improper withholding and subsequent loss must be borne by the tenderer/bailee. This is true unless Connelly has a good faith reason for withholding the stock. See Condon, 604 N.W.2d at 593 (“Good faith by the defendant is a factor to consider in determining whether the interference amounts to conversion.”); McCray v. Carstensen, 492 N.W.2d 444, 446 (Iowa App.1992) (“ ‘[0]ne in possession of a chattel who is in reasonable doubt as to the right of a claimant to its immediate possession does not become a converter .... ’ ” (quoting Restatement (Second) of Torts § 240(1), at 469 (1965))). Connelly admits that it owed Whalen at least as much as 55,904 shares, which it offered for tender in 1993. The district court reinforced this amount by declaratory judgment in Whalen I. Connelly has never disputed this judgment or claimed it owed Whalen less. In such a scenario, there can be no reasonable doubt that the number of shares of stock would be established at less by virtue of the appeal in Whalen I.

Connelly argues in the alternative that it reasonably withheld the stock pending the appeal. In other words, Connelly asserts the appeal trumped the statute. The Iowa tender statute does not purport to limit its use to circumstances where no appeal is pending. See Iowa Code §§ 538.4, .7. Connelly argues it would somehow have been prejudiced in the appeal if it had honored Whalen’s demand. We recognize that if Whalen had obtained the stock during the pendency of the appeal, as he demanded, that might have diminished or mooted the effect of his argument for more money in lieu of stock. That consequence, however, would fall on Whalen and provide no viable reason to Connelly for withholding the stock. Since Connelly never argued it owed less stock than offered in its 1993 tender, no good faith reason for withholding the stock has been shown. Consequently, when Connelly withheld the stock from Whalen, it bore the risk of loss. Connelly is liable to WTialen for damages of conversion. We reverse Connelly’s summary judgment on this issue and direct the district court to grant Whalen’s partial motion for summary judgment.

B. Malicious Prosecution-Cross-Appeal

The issue presented on cross-appeal is whether Connelly has shown the special damages necessary for a malicious prosecution suit, or alternatively, whether the failure to show special damages should bar a party from bringing a malicious prosecution suit in these circumstances.

We have stated there are six elements necessary to successfully charge an opponent with malicious prosecution.

The elements of malicious prosecution are as follows: (1) a previous prosecution; (2) investigation of that prosecution by the defendant; (3) termination of that prosecution by acquittal or discharge of the plaintiff; (4) want of probable cause; (5) malice on the part of the defendant for bringing the prosecution; and (6) damage to the plaintiff. This damage to the plaintiff must be for an arrest of the person, seizure of property or special injury — injury that would not ordinarily result in all similar cases involving such a claim.

Employers Mut. Cas. Co. v. Cedar Rapids Television Co., 552 N.W.2d 639, 643 (Iowa 1996) (citations omitted). Connelly specifically fails the sixth requirement because incidental costs to defend against a lawsuit are not special damages.

Connelly seeks a revision of the above rule to eliminate the special damages requirement or at least clarify the rule and allow an exception for cases such as this. Connelly points to evidence that Whalen purposefully concealed indicating he knew his lawsuit in Whalen I to be without merit. Connelly places great emphasis on the fact that Whalen is an educated man who intentionally filed a merit-less lawsuit. Connelly suggests this makes Whalen’s actions more egregious and minimizes the amount of special damages Connelly must show. Given this fact and the great expense to Connelly, Connelly argues this is an exceptional circumstance that provides the damage element necessary for a malicious prosecution suit.

Nevertheless, our precedent requires a showing of special injury which is not present here. See, e.g., Employers Mut., 552 N.W.2d at 643. We are aware other authority no longer requires this element. Restatement (Second) of Torts §§ 674 cmt. e, at 455, 681 cmt. d, at 470 (1977). But see 52 Am.Jur.2d Malicious Prosecution §§ 10-11, at 192-95 (1970) (recognizing that the showing of a special injury is still a necessary element in many jurisdictions). However, we are not persuaded to amend our rule for this circumstance.

In the alternative, Connelly attempts to show it suffered special injury beyond the expense of litigation when Whalen’s suit allegedly hindered its initial public offering by making it more expensive for Connelly to secure investment capital. We pass no judgment on whether this claim by Con-nelly would be sufficient to constitute special damages because Connelly failed to supply evidence of this injury. We affirm summary judgment in Whalen’s favor on this issue.

C. Conclusion

The district court erred when it granted summary judgment in favor of Connelly on Whalen’s conversion claim. Under the Iowa tender law, Connelly’s failure to deliver the stock within a reasonable time shifted the risk of loss to Connelly. Con-nelly is responsible for damages and unpaid interest arising from this conversion. We reverse and remand for a determination of loss of value and interest.

The district court correctly granted summary judgment in favor of Whalen on Connelly’s counterclaim. Special damages beyond the cost of litigation are not proved to support a malicious prosecution suit. We affirm this determination.

REVERSED ON APPEAL AND REMANDED FOR FURTHER PROCEEDINGS; AFFIRMED ON CROSS-APPEAL.

McGIVERIN, S.J., participates in place of NEUMAN, J., who takes no part.

      . J. Edward Connelly Associates, Incorporated is a successor to Della III, Inc., which was a named party in Whalen I and Whalen II. Della III, Inc. was a former general partner of TCG.

      . The claims against defendants John E. Con-nelly individually and President Casinos, Inc. were dismissed for lack of personal jurisdiction. Only J. Edward Connelly Associates, Inc. and PRC-Iowa, Inc. remain as defendants in this appeal.


source: Caselaw Access Project

author: SACKETT, Chief Judge.

license: Public Domain

text:
    STATE of Iowa, Plaintiff-Appellee, v. Liborio MARTINEZ, Defendant-Appellant.
    No. 99-0831.
    Court of Appeals of Iowa.
    Aug. 30, 2000.

      Linda Del Gallo, State Appellate Defender, and Nan Jennisch, Assistant State Appellate Defender, for appellant.
    Thomas J. Miller, Attorney General, Denise A. Timmins, Assistant Attorney General, Thomas S. Mullin, County Attorney, and Mark Campbell, Assistant County Attorney, for appellee.
    Considered by SACKETT, C.J., and STREIT and VAITHESWARAN, JJ.
   SACKETT, Chief Judge.

Defendant-Appellant, Liborio Martinez, appeals following his conviction for three counts of possession with intent to deliver and three drug count violations. Defendant contends the district court (1) should have admitted an exculpatory statement in the form of a letter written to his attorney by a witness who refused to testify and consequently is unavailable, and (2) should not have admitted evidence he used aliases in the past. We affirm.

Defendant and Sandra Guadarrama were arrested in the evening hours of December 11, 1998, following a search in which police officers found methamphetamine, cocaine hydrochloride, cocaine and marijuana in an apartment occupied by Guadarrama and her children. Guadarra-ma had given permission for the search, and defendant, the father of Guadarrama’s children, was in the apartment at the time. The officers went to Guadarrama’s apartment after Elaine Walker, arrested for passing $100 counterfeit bills, told police she purchased drugs with a counterfeit bill at the apartment. At the time of arrest defendant admitted the drugs were his, and Guadarrama denied ownership of them.

On January 26, 1999, Guadarrama wrote the following letter to defendant’s attorney:

To: Douglas Roehrich Attorney at Law
1-26-99
I Sandra Guadarrama willingly & knowingly plead guilty & possession of all drugs that was seized from my home 905 — 12th St. # 2.
Liborio Martinez, has nothing! nothing! to do with these drugs there [sic] were in my house and in my possession.
I’ve told the officers (police) that he don’t live with me he came to visit his children and asked if he could spend the night I said it was ok. He had his duffle bag out in the hallway with him and they were there when the police came and I even showed them he didn’t live here. I said just me and my kid. This is a true statement.
Sandra Guadarrama
((nobodys putting me up to this! Its all on my own. This is my confession.
Sandra Guadarrama

Defendant sought to admit the letter at trial after Guadarrama testified she wrote it but exercised her right against self-incrimination as to further testimony. The district court denied defendant’s request but accepted the letter as an offer of proof. Defendant contends it was error for the court to refuse to admit the letter in evidence.

Defendant testified in his own behalf denying ownership or knowledge of the drugs and contending he initially admitted the drugs were his to prevent the children from being removed from their mother’s care.

Defendant, while appearing to concede the letter written by Guadarrama is hearsay, contends it is admissible as a statement against penal interest under Iowa Rule of Evidence 804 , because Gua-darrama, having exercised her privilege against self-incrimination, was not available to testify. The State agrees as do we that because Guadarrama exercised her privilege against self-incrimination she was not available to testify. See State v. DeWitt, 597 N.W.2d 809 (Iowa 1999). The State further agrees as do we that the letter is a statement against her penal interest.

The State contends the district court was correct in not admitting the letter because there are no corroborating circumstances showing the trustworthiness of the letter.

We review rulings on the admission of hearsay evidence for correction of errors of law. See State v. Ross, 573 N.W.2d 906, 910 (Iowa 1998). In addressing defendant’s argument we need to focus on that part of Iowa Rule of Evidence 804(b)(3) that provides: “[a] statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.”

The rule imposes a showing that corroborating circumstances clearly indicate the trustworthiness of the statement when the statement exculpates the accused. Iowa R.Evid. 804(b)(3). The letter, if believed, would exculpate the defendant. Therefore we need to examine whether corroborating circumstances clearly indicate the trustworthiness of the letter. See id.

Defendant contends the necessary corroborating circumstances have been shown to allow the jury to make a determination of whether the statements made in the letter are true. In support of this argument defendant points to the following facts: (1) Guadarrama admitted writing the letter; (2) she rented the apartment; (3) there were drugs found in a purse with other possessions of hers; and (4) he testified and denied ownership of the drugs and testified he made the earlier statements as to ownership so the children would not be taken from their mother.

The State contends the following facts support its position: (1) defendant was in the apartment at the time of the search; (2) at the time of arrest he admitted the drugs were his; (3) Guadarrama at the time of arrest denied ownership of the drugs; (4) Guadarrama gave permission to search the apartment first by officers and then by officers using a drug dog; (5) the letter was not written until almost two months following the event;, (6) defendant and Guadarrama are the parents of four children; (7) defendant was identified by Elaine Walker as the person who sold her drugs; (8) the counterfeit bill Walker gave defendant was found in the search.

Federal courts have noted that statements exposing the declarant to criminal liability but exculpating the accused are suspect. United States v. Salvador, 820 F.2d 558, 561 (2d Cir.1987), cert. denied, 484 U.S. 966, 108 S.Ct. 458, 98 L.Ed.2d 398 (1987). In order for a declaration against penal interest to be trustworthy evidence, the declarant must actually have made the statement, and it must afford a basis for believing the truth of the matter asserted. United States v. Bagley, 537 F.2d 162, 167 (5th Cir.1976), cert. denied, 429 U.S. 1075, 97 S.Ct. 816, 50 L.Ed.2d 794 (1977).

Actually the factors identified by the defendant and the State go to both the trustworthiness of the letter and the weight it should be given. In DeWitt the Iowa court noted the following observation made in United States v. Garcia, 986 F.2d 1135, 1141 (7th Cir.1993) to the federal counterpart of the Iowa rule:

[T]he corroboration requirement of 804(b)(3) is a preliminary question as to the admissibility of evidence, not an ultimate determination as to the weight to be given such evidence. The district judge does not need to be completely convinced that exculpatory statements are true prior to their admission. Such a high burden was not intended by the corroboration requirement of 804(b)(3). The district court must find only that sufficient corroborating circumstances exist and then permit the jury to make the ultimate determination concerning the truth of the statements.

Garcia, 986 F.2d at 1141 (footnote omitted).

We look first to the factors that need be weighed on the issues of admissibility. Are there sufficient corroborating circumstances to show the letter is trustworthy? We find some guidance in State v. Weaver, 554 N.W.2d 240, 248 (Iowa 1996) where the Iowa court talked of factors to consider in making a trustworthiness determination under rule 803(24) to include: the declarant’s propensity to tell the truth, whether the alleged statements were made under oath, assurance of de-clarant’s personal knowledge, the time lapse between the alleged event and the statement concerning the event, and the motivations of the declarant to make the alleged statements. See id. The court related additional circumstances to consider include corroboration, reaffirming or recanting the statement by the declarant, credibility of the witness reporting the statement, and availability of the declarant for cross-examination. See id. (citing 7 James A. Adams & Kasey W. Kincaid, Iowa Practice — Evidence 463-64 (1988); 2 Kenneth Broun et al., McCormick on Evidence § 324, at 363-65 (John W. Strong ed., 4th ed.1992)). Many of the above factors go not only to trustworthiness but also to the weight given hearsay evidence. Yet the underlying factor on admissibility under Iowa Rule of Evidence 804(b)(3) is whether a reasonable person could conclude the statement, the letter here, could be true. See 5 Jack B. Weinstein & Margaret A. Berger, Weinstein’s Federal Evidence, § 804.06(5)(6), at 804-59-61 (Joseph M. McLaughlin, ed., Matthew Bench 2d ed.1997) .04.06(6)(b) (1997).

We conduct an examination to first determine whether the statement is what it purports to be, “A statement written by Guadarrama”. Guadarrama testified she wrote the letter, and there is no evidence she did not nor is there any evidence she wrote it under some type of duress, threat or intimidation. Consequently a reasonable person could conclude she wrote it in good faith.

The inquiry, however, does not end there but requires that we determine if the circumstances permit a reasonable person to believe that statements made in the letter as to ownership of the drugs could be true. See, generally, id. The following factors indicate the statements made in the letter might be true and Gua-darrama’s earlier denial might be false: (1) defendant’s testimony the drugs were not his and he was not aware the drugs were in the apartment; he originally admitted the drugs were his to keep the State from taking his children from their mother; (2) the drugs were found in an apartment where Guadarrama lived with her children; (3) drugs were found underneath the mattress of the bed where Guadarrama’s children slept; (4) drugs were found in a purse with other possessions of Guadarra-ma’s; (5) Guadarrama was present when the drugs were found; (6) defendant testified he was at the apartment only to visit his four children; (7) defendant had another address; (8) while defendant had $600 in cash in his billfold, the counterfeit bill was found in the apartment not his billfold.

The following factors indicate the statements made in the letter may be false: (1) defendant’s presence in the apartment; (2) his initial admission as to ownership of the drugs; (3) Walker’s testimony she purchased drugs from defendant; (4) Guadar-rama’s initial denial of ownership; and (5) the relationship between defendant and Guadarrama. These facts both support a finding defendant had an ownership interest in the drugs and impeach the credibility of Guadarrama’s statement.

The difficult question is whether the evidence indicating the letter is false is so strong that a reasonable fact finder would not find it trustworthy, even though there is other substantial evidence in the record which if believed would support the statements in Guadarrama’s letter. See Garcia, 986 F.2d at 1141.

Federal courts have said statements exposing the declarant to criminal liability but exculpating the accused are suspect. Salvador, 820 F.2d at 561. And the inference of trustworthiness from the proffered corroborating circumstances must be strong, not merely allowable. Id. The conflicting facts as to the trustworthiness of Guadarrama’s statement would best be explored through cross-examination. The evidence of corroborating circumstances is not sufficient to establish an inference the statement is trustworthy. We affirm the district court on this issue.

Defendant’s second contention is the State should not have been allowed to introduce evidence defendant has used other names or aliases. Defendant contends the evidence was not relevant, and if it were relevant, it was more prejudicial than probative. The State points out the only objection raised in district court is that the evidence was not relevant.

On evidentiary issues we review for an abuse of discretion. State v. Most, 578 N.W.2d 250, 258 (Iowa App.1998). In order to show an abuse of discretion, one generally must show the court exercised its discretion on grounds or for reasons clearly untenable or to an extent clearly unreasonable. Id. Prior case law does not clearly delineate when a simple relevancy objection is sufficient to preserve a more specific argument on appellate review. State v. Mulvany, 603 N.W.2d 630, 632 (Iowa App.1999). However, the Iowa Supreme Court has recently held an objection on general relevancy grounds did preserve error on a challenge to probative value. See State v. Sallis, 574 N.W.2d 15, 17 (Iowa 1998). We find error was preserved by the defendant’s motion in limine.

Federal courts have examined the issue of the admissibility of defendants’ use of abases under Federal Rule of Evidence 608(b). Federal interpretation of Federal Rules of Evidence can provide us with guidances in interpreting the Iowa counterpart to the federal rule, Iowa Rule of Evidence 608(b). Federal Rule of Evidence 608(b) provides similarly to Iowa Rule of Evidence 608(b) that specific instances of the witness’ conduct may “in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness’ character for truthfulness or untruthfulness ...”. See Fed.R.Evid. 608(b) (1999).

Courts have held that “[a] witness’ use of false names or false identities is a proper subject of cross-examination under Fed.R.Evid. 608.” United States v. Mansaw, 714 F.2d 785, 789 (8th Cir.1983), cert. denied, 464 U.S. 964, 104 S.Ct. 403, 78 L.Ed.2d 343 (1983); see also Young v. Calhoun, 1995 WL 169020 at *5 (S.D.N.Y. Apr.10, 1995) (holding a witness’ use of false names or identities is the proper subject of cross-examination under Rule 608). The United States Court of Appeals for the Ninth Circuit has reasoned:

The issue is whether the use of false names bears directly enough upon the witness’ veracity as to outweigh the general prohibition against cross-examining about particular acts of misconduct other than convictions of a crime. We think it does. If a man lies about his own name, might he not tell other lies?

Lyda v. United States, 321 F.2d 788, 793 (9th Cir.1963).

In Fletcher v. City of New York, 54 F.Supp.2d 328 (S.D.N.Y.1999), defendant sought to introduce into evidence eighteen aliases used by plaintiff. Plaintiff used the aliases in connection with other criminal activity for which he was convicted. Plaintiff expressed concern that defendant’s effort to introduce all eighteen aliases into evidence would simply alert the jury to certain arrests and/or convictions that would not otherwise be admissible. Fletcher, 54 F.Supp.2d at 333. The district court ruled all eighteen of plaintiffs aliases were admissible under Federal Rule of Evidence 608(b) with the limitation that defendants may inquire into plaintiffs use of aliases, “without eliciting the fact that plaintiff was arrested and/or convicted for prior criminal conduct in connection with the use of these abases.” Id.; Young v. Calhoun, 1995 WL 169020 at *5.

The State cross-examined the defendant in regard to his prior use of aliases in order to impeach his credibility for honesty and truthfulness. Evidence of defendant’s use of aliases in the past is highly probative in regards to credibility and truthfulness of the defendant. Evidence of defendant’s use of aliases was a permissible method of impeachment by the State. The prejudicial effect of such evidence was minimal in comparison to its probative value for which it was offered. The trial court did not abuse its discretion in admitting evidence of defendant’s prior use of abases. The judgment and sentence entered is affirmed.

AFFIRMED.

      . Iowa Rule of Evid. 804(b) provides:
      The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:
      (3) Statement against Interest. A statement which was at the time of its making so far contrary to the declarant’s pecuniary or proprietary interest, or so far tended to subject him to civil or criminal liability, or to render invalid a claim by him against another, that a reasonable man in his position would not have made the statement unless he believed it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.

      . The State argues that this fact indicates the drugs were not hers because she would not have allowed the search had she known the drugs were there. However; the placement of the drugs in the apartment make it highly unlikely that a person living in the apartment would not have been aware of their presence.

      . Iowa R. of Evid. 803(24) allows for admission not specifically covered by foregoing exceptions where availability of the declarant is immaterial and provides in relevant part: "A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that....” Whether this establishes a greater degree of trustworthiness than is required for admission under Iowa R. of Evid. 804(b)(3) could be questioned but we do not do so.

      . Iowa R.Evid. 608(b) "Specific Instances of Conduct” provides:
      "Specific instances of the conduct of a witness, for the purpose of attacking or supporting his credibility, other than conviction of crime as provided in Iowa Evid.R. 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning his character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.
      The giving of testimony, whether by an accused or by any other witness, does not operate as a waiver of his privilege against self-incrimination when examined with respect to matters which relate only to credibility.”


author: VOGEL, Judge. SACKETT, Chief Judge

text:
    Una RAY, Plaintiff-Appellant, v. MERLE HAY MALL, INC. and Merle Hay Mall, A Limited Partnership, Defendants-Appellees.
    No. 99-1367.
    Court of Appeals of Iowa.
    Sept. 27, 2000.

      Jerry R. Foxhoven, Des Moines, for appellant.
    Donna R. Miller of Grefe & Sidney, P.L.C., Des Moines, for appellees.
   VOGEL, Judge.

Una Ray appeals the district court’s ruling denying her motion seeking relief from the operation of Iowa Rule of Civil Procedure 215.1 on the dismissal of her tort action. We find her action of securing a trial date by stipulation of the parties does not operate to circumvent the required procedure under rule 215.1. This rule mandates application to the court for a continuance to avoid dismissal for failure to try a case prior to the noticed date. Therefore, the trial court did not err in overruling Ray’s motion to declare Iowa Rule of Civil Procedure 215.1 inapplicable. Affirmed.

Background facts. Ray filed a personal injury action against Merle Hay Mall, Inc. (Merle Hay) on November 4,1996. Notice of dismissal under Iowa Rule of Civil Procedure 215.1 was sent to the parties on July 16, 1998, notifying them that the case must be tried by January 2, 1999, or it would be dismissed. Ray sought a Uniform Scheduling Order from the court, which was approved by counsel for Merle Hay. The order was entered and filed on December 28, 1998, setting a trial date of August 2,1999.

On June 28, 1999, Ray filed a motion to declare Iowa Rule of Civil Procedure 215.1 inapplicable and, in the alternative, to reinstate her case. The trial court heard arguments on the motion and. overruled it. Ray appeals.

Scope of review. This is a law action and we review the district court’s decision for error in its application of legal principles. Iowa R.App.P. 4; Waukon Auto Supply v. Farmers & Merchants Sav. Bank, 440 N.W.2d 844, 846 (Iowa 1989). The district court’s decision will not be set aside unless induced by an erroneous view of the law. Frantz v. Knights of Columbus, 205 N.W.2d 705, 708 (Iowa 1973).

Iowa Rule of Civil Procedure 215.1. Ray contends the Uniform Scheduling Order, which set a trial date, insulated this case from the fatal consequences of Iowa Rule of Civil Procedure 215.1. Except for a small list of exemptions, rule 215.1 requires dismissal of any case that has not proceeded to trial within the prescribed time period. The court has previously stated, rule 215.1 is “positive and definite and ... clearly mandatory.... ‘The operation of the rule is not discretionary with the trial court.’ ” Talbot v. Talbot, 255 Iowa 337, 340, 122 N.W.2d 456, 458 (1963) (quoting Windus v. Great Plains Gas, 254 Iowa 114, 123, 116 N.W.2d 410, 415 (1962)). The rule, however, further provides:

All such cases shall be assigned and tried or dismissed without prejudice at plaintiffs costs unless satisfactory reasons for want of prosecution or grounds for continuance be shown by application and ruling thereon after notice and not ex parte.
* * Sc
No continuance under this rule shall be by stipulation of parties alone but must be by order of court....

Iowa R.Civ.P. 215.1.

Ray relies on two interwoven facts to support her position; defense counsel’s approval of the scheduling order, setting trial eight months beyond the otherwise mandatory dismissal date under rule 215.1, and the district court’s signing of the order. In advancing her argument, Ray cites the following precedent:

We have never said that a case should be dismissed for lack of prosecution while on the active trial assignment, assigned for trial on a date certain and before the arrival of the trial date. Such a ruling would be arbitrary and beyond the realm of sound discretion.

Kutrules v. Suchomel, 258 Iowa 1206, 1213, 141 N.W.2d 593, 598 (1966). She interprets that to mean that with an assigned trial date, the case was no longer subject to rule 215.1. This interpretation, however, is too narrow. Earlier in the opinion, Kutrules specifically states, “[t]o avoid a mandatory dismissal under the rule there must be an application setting forth the reasons, notice, hearing, finding, and order for continuance before the entry of the dismissal.” Id. at 1212, 141 N.W.2d at 597 (emphasis added); see also Iowa R.Civ.P. 215.1.

Merle Hay asserts that despite its agreement to the trial date being set beyond the rule 215.1 deadline, it expressed to Ray its intention to defend dismissal under the rule. The rule itself specifically states “[n]o continuance under this rule shall be by stipulation of parties alone ...” Iowa R.Civ.P. 215.1. We observe the court has previously stated, “[w]e do not endorse litigation by ambush.” Gold Crown Properties, Inc. v. Iowa Dist. Ct., 375 N.W.2d 692, 698 (Iowa 1985). While both Gold Crown Properties, Inc. and Ray share the common fact of having adverse counsel enter a pretrial stipulation, counsel for Merle Hay merely stipulated to the setting of a trial date without agreeing to a ride 215.1 continuance. Id. Gold Crown Properties, Inc. and opposing counsel stipulated to a continuance, which was subsequently granted by the trial court. Id. The distinction is apparent. A request for a trial date, without further comment, can be granted as a ministerial function of the court. In contrast, a request for a continuance under rule 215.1, requires a party to set forth reasons why a case should be given a longer life than intended under the declared policy of the rule.

Ray failed to present her reasons to the court as to why she should be granted a continuance. The scheduling order Ray relies on did not satisfy the requirements under the rule. Other than containing the date the petition was filed, there was no indication in the scheduling order alerting the judge that the case was subject to imminent dismissal. Simply agreeing on a trial date without including “grounds for continuance” circumvents the requirements under rule 215.1. Ray had the burden of keeping her case alive and avoiding an automatic dismissal under rule 215.1. See Greif v. K-Mart Corp., 404 N.W.2d 151, 154 (Iowa 1987). Accordingly, the stipulation as to a trial date does not save her case from automatic dismissal under rule 215.1. Compare Butner v. Beyer, 593 N.W.2d 133, 135 (Iowa 1999) (holding district court was without authority to dismiss the case on rule 215.1 grounds when an application had been filed and a continuance ordered). We find, therefore, this case was correctly dismissed pursuant to rule 215.1.

Although Ray will undoubtedly believe this a harsh result, both the rule itself and our case law specifically require an application to the court for a continuance before a case is dismissed. Without this effort by the moving party, the court does not have the discretion to withhold the application of the rule.

While it may at first blush seem that this is a harsh rule and that it deprives the trial court of much of its discretion in matters before it, such is really not the case. The rule does not limit or purport to limit the sound discretion of the trial court to grant continuances for just cause. It merely requires that the discretion be exercised pursuant to a timely application and that its action thereon be by enrolled order after notice to the parties.
The rule is of uniform application throughout the state and is not harsh or unfair. It is a rule necessary to expedite the trial of cases brought to court. It is a rule of diligence and requires no more of counsel or of courts than litigants have a right to expect. It deprives neither of right or authority. For good and sufficient reason any case may still be continued when application is promptly made and the parties are advised of the request and when the court’s action is by enrolled order.

Talbot, 255 Iowa at 340-41, 122 N.W.2d at 458-59.

In reviewing the record before us, we find the trial court correctly applied the rule for dismissal for want of prosecution and overruled Ray’s motion. Accordingly, we find the case was properly dismissed pursuant to Iowa Rule of Civil Procedure 215.1.

Reinstatement of case. Ray next argues that if her case was properly dismissed, such a finding requires reinstatement because the dismissal was the result of “oversight, mistake or other reasonable cause,” and the trial court erred in failing to order mandatory reinstatement. See Iowa R.Civ.P. 215.1. We review a denial of mandatory reinstatement for errors at law. The trial court’s findings of fact are binding on appeal if supported by substantial evidence. Rath v. Sholty, 199 N.W.2d 333, 336 (Iowa 1972). Iowa Rule of Civil Procedure 215.1 states:

The trial court may, in its discretion, and shall upon a showing that such dismissal was the result of oversight, mistake or other reasonable cause, reinstate the action or actions so dismissed....

Ray argues her assumption that the case would not be dismissed because of the stipulated scheduling order mandates reinstatement. “[I]t is beyond power of trial court to withhold reinstatement when the required showing has been made.” Rath, 199 N.W.2d at 336. However, even mandatory reinstatement requires proof of reasonable diligence in preparing and pursuing the case for trial. O’Brien v. Mullapudi, 405 N.W.2d 815, 816-17 (Iowa 1987). “The recurring theme in our mandatory reinstatement decisions is that a plaintiffs case should be reinstated if there is a showing by the movant that the attorney had been diligently pursuing the case and preparing it for trial but simply overlooked the rule 215.1 deadline.... In effect, plaintiff must show he would have been entitled to a continuance, if one had timely been requested, in order to prevail on his motion to reinstate a case dismissed under rule 215.1.” Id. at 818-19. After filing the lawsuit on November 4,1996, Ray took minimal action in this case until seeking the uniform scheduling order in December 1998. The trial court found:

The record is void of any showing of diligence by plaintiff to get the case ready for trial. There is no showing of any formal discovery. Defense counsel has the 1994 treatment records but no other information concerning plaintiffs alleged damages. Even though the answer alerted plaintiff that Merle Hall Mall, Inc. was not the legal owner of the real estate known as “Merle Hay Mall” there was no discovery or formal action by plaintiff to determine if the proper party was named. All of the contacts to resolve the case have been initiated by defense counsel who has repeatedly, but unsuccessfully solicited information in an attempt to determine if a settlement of the case was possible. To reinstate the case some four and one-half years after the incident would result in prejudice to defendants.

Ray failed to demonstrate reasonable diligence in preparing and pursuing the case for trial within the allotted time. Accordingly, we find the trial court did not err in failing to reinstate this case. We affirm.

AFFIRMED.

All judges concur except SACKETT, C.J., who concurs in part and dissents in part.

SACKETT, Chief Judge

(concurring in part and dissenting in part).

I concur in part and dissent in part.

I agree with the majority that the case was dismissed under 215.1 on January 2, 1999.

Because I believe that the district court considered improper factors in addressing the plaintiffs motion for reinstatement of the case I would reverse and remand to the district court to reconsider the motion applying proper factors.

Rule 215.1 enumerates two bases on which the court can reinstate a case dismissed under that rule. O’Brien v. Mullapudi, 405 N.W.2d 815, 815 (Iowa 1992). The first is a mandatory reinstatement determination, which we review at law. Id. at 817. The second is a discretionary reinstatement, which we review for an abuse of discretion. See id.

In December of 1998 the parties agreed to a uniform scheduling order and the setting of the trial date for August 9, 1999. Plaintiff on January 6, 1999, notified defendant of the expert witnesses she intended to call. This shows me that the failure to reinstate was an oversight or a mistake which can support a mandatory reinstatement. However, a plaintiff seeking a mandatory reinstatement, in addition to showing an oversight or mistake, must prove no less than reasonable diligence or, put another, way a plaintiff must show he or she would have been entitled to a continuance if one had been timely requested. See O’Brien at 819.

In denying the application for reinstatement and in finding “the record was void of any showing of diligence by plaintiff to get the ease ready for trial” the district court considered that “there was no discovery or formal action by plaintiff to determine if the proper party was named. All of the contacts to resolve the case have been initiated by defense counsel who has repeatedly, but unsuccessfully, solicited information in an attempt to determine if a settlement of the case was possible.”

I believe it was not proper for the district court to consider plaintiffs failure to use formal discovery procedure and plaintiffs failure to respond to defendant’s settlement requests in finding plaintiff was not ready for trial.

Neither plaintiff nor defendant made any formal discovery requests. There is no rule that requires a plaintiff to conduct formal discovery. In the perfect world a plaintiff would have so adequately investigated her case before filing that she would know all she needed to know to go to trial without further discovery. Consequently I do not believe a failure to conduct formal discovery is or should be considered in determining whether a plaintiff has used due diligence in preparing a case for trial. Nor do I believe that the unanswered settlement requests of defendant’s attorney should be considered. The requests were made in conversation and by letter. No formal discovery procedures were utilized by defendant in making the request. This is not a case where plaintiff failed to comply with defendant’s formal discovery requests. While a cooperative exchange of information is certainly favored, plaintiff was not required to make the materials available until a formal discovery request was made.

The majority, while inferring plaintiff has no duty to conduct formal discovery, has affirmed the district court’s consideration of this fact in making its ruling. With this I cannot agree. Additionally, I disagree that Ray has failed to demonstrate any indicia of readiness. Ray has a trial date and has advised defendant of her experts. Defendant has made no formal request for anything more. There is substantial evidence to support a finding of readiness. Consequently, I would remand to the district court to reconsider the request using proper factors and excluding from its consideration the failure to make formal discovery and the failure to respond to defendant’s informal request for settlement.

      . The Supreme Court has departed from Ku-trules on a separate issue regarding "new claims or new parties added by amendment after the original petition is filed, or for counterclaims, cross-petitions, or petitions of intervention ...” City of Muscatine v. U.S. Enviro-Con., Inc., 374 N.W.2d 405, 410 (Iowa 1985).


author: BLATZ, Chief Justice.

text:
    STATE of Minnesota, Respondent, v. Joseph Allen AZURE, Appellant.
    No. C1-00-61.
    Supreme Court of Minnesota.
    Jan. 25, 2001.

      John J. Leuni, Harlan M. Goulett, Minneapolis, for appellant.
    Mike Hatch, Atty. Gen., Kelly O’Neill Moller, Asst. Atty. Gen., St. Paul, Joseph Evans, Becker County Atty., Detroit Lakes, for respondent.
   OPINION

BLATZ, Chief Justice.

Appellant Joseph Allen Azure brings a direct appeal from his September 21, 1999 conviction for first-degree murder. The only issue on appeal is whether the judge who presided over appellant’s trial should have removed himself pursuant to appellant’s oral pretrial request. Appellant argues that Minn.Stat. § 542.16 (1998), not Minn. R.Crim. P. 26.03, subd. 13(4), governs the removal of judges and that his motion to remove was properly made under the statute. We hold that Rule 26.03, subd. 13(4) sets forth the applicable removal procedure and that appellant did not file his notice of removal in compliance with the rule. Appellant’s conviction is therefore affirmed.

The relevant facts are not disputed. Shortly after appellant’s indictment, Becker County District Court Judge William E. Walker conducted a May 6, 1999 preliminary hearing in which appellant made an uncontested request for a transcript of the grand jury proceeding. The parties agreed to continue all contested matters until appellant obtained the transcript. The state then asked whether those matters could be scheduled for hearing, but both Judge Walker and the court clerk stated that the subsequent omnibus hearing could not be scheduled until a judge was assigned to the case. The hearing transcript and Judge Walker’s order each reflect the parties’ agreement that Judge Walker was not permanently assigned to the case.

In a letter dated May 12, 1999, the parties received notice that the second omnibus hearing was scheduled for May 26, 1999. The letter stated that Judge Thomas P. Schroeder had been assigned to that hearing and “for all subsequent hearings for purposes of M.S.A. 542.13, M.S.A. 542.16 and Rules of Civil Procedure 63.03.” Minnesota Statutes § 542.16 allows parties to a criminal suit to file a notice of a judge’s peremptory removal with the court administrator up to two days before the end of the trial preparation period. The May 12 letter did not mention Minn. R.Crim. P. 26.03, subd. 13(4), which requires a party seeking removal to file a notice of removal with the court administrator within seven days after receiving notice of the judge assignment.

During the May 26 omnibus hearing, appellant requested that Judge Schroeder remove himself from the case. Appellant argued that he was entitled to automatic removal pursuant to Minn.Stat. § 542.16 because appellant gave his notice to remove more than two days before trial, which was within the statute’s time limitation for removal. Judge Schroeder con-eluded that appellant’s motion to remove was untimely and denied the request.

In August 1999, appellant brought a motion seeking Judge Walker’s reinstatement. Despite his earlier argument that section 542.16 governed removal, appellant argued at the August 1999 motion hearing that Rule 26.03 prohibited the case from being reassigned after Judge Walker presided over the May 6 hearing. See Minn. R.Crim. P. 26.03, subd. 13(4) (“No notice to remove shall be effective against a judge who has already' presided at the trial, Omnibus Hearing, or other evidentia-ry hearing * * *.”). Judge Sehroeder found, as the parties had agreed in the May 6 hearing, that no judge was assigned to the case on or before May 6. Judge Sehroeder then denied the motion, concluding that he was permanently assigned to the case by the May 12 letter and that appellant did not bring a notice of removal within seven days of that assignment as required by Rule 26.03, subd. 13(4). On appeal, appellant does not challenge Judge Schroeder’s ruling on the motion to reinstate Judge Walker, but instead renews his initial argument that the motion to remove was timely under Minn.Stat. § 542.16.

I.

The first issue that must be decided is whether Minn.Stat. § 542 .16 or Minn. R.Crim. P. 26.03, subd. 13(4) controls the peremptory removal of judges in criminal matters. This issue involves the construction of statutes and rules which is subject to de novo review. See State v. Smallwood, 594 N.W.2d 144, 151 n. 4 (Minn.1999); Hibbing Educ. Ass’n v. Public Employment Relations Bd., 369 N.W.2d 527, 529 (Minn.1985).

Both section 542.16 and Rule 26.03, subd. 13(4) set forth procedures for filing a peremptory notice of removal in criminal cases. Minnesota Statutes § 542.16 provides in relevant part:

In criminal actions the notice to remove shall be made and filed with the court administrator by the defendant, or the defendant’s attorney, not less than two days before the expiration of the time allowed by law to prepare for trial and in any of these cases the presiding judge shall be incapacitated for cause.

In contrast, Minn. R.Crim. P. 26.03, subd. 13(4) states:

The defendant or the prosecuting attorney may serve on the other party and file with the court administrator a notice to remove the judge assigned to a trial or hearing. The notice shall be served and filed within seven (7) days after the party receives notice of which judge is to preside at the trial or hearing, but not later than the commencement of the trial or hearing.

Except in a rare case, there is an inherent conflict between section 542.16 and Rule 26.03, subd. 13(4) because each creates a different time limitation for filing a notice of removal. Appellant nonetheless argues that this court should, as a matter of comity, simply permit parties to satisfy their choice of either the statute or the rule. Despite appellant’s urgings, there must be a single, clear procedure for removing judges because enforcing two alternate time limits would create confusion as to when the time for filing expires.

Given the conflict between Rule 26.03, subd. 13(4) and section 542.16, we must determine whether peremptory removal is a procedural matter governed by this court’s rules of procedure, or whether it is a substantive right governed by statute. See State v. Johnson, 514 N.W.2d 551, 554 (Minn.1994) (noting that the courts govern procedural subjects and the legislature governs substantive rights). Because the judiciary oversees court procedure, the rules of criminal procedure supersede conflicting statutes. See id; see also Minn.Stat. § 480.059, subds. 1, 7 (2000) (acknowledging that the supreme court regulates procedural matters in all state criminal actions and that statutes relating to procedure in such actions may be superseded by court rules).

This court has already decided that the assignment and removal of judges is procedural. In State v. Cermak, we held that Minn. R.Crim. P. 24.03, which requires cases to be tried before the judge who ordered a change of venue, supersedes section 542.16 because the statute and the rule conflict over a procedural issue. 350 N.W.2d 328, 331 (Minn.1984). Recently, we acknowledged that “Minnesota Statutes section 542.16 was superseded in 1989 by Minn. R.Crim. P. 26.03, subd. 13(4) * * *." State v. Erickson, 589 N.W.2d 481, 484 (Minn.1999); see also Advisory Committee Comment to Minn. R.Crim. P. 26 (“Rule 26.03, subd. 13 * * * supersedes Minn.Stat. § 542.16 (1988) concerning notice to remove a judge in criminal proceedings.”).

We see no reason to disturb this precedent. Rule 26.03, subd. 13(4) clearly does not address substantive rights — it does not define certain acts as crimes, affect the applicable punishment, or alter a defendant’s ability to present a complete defense. See State v. Wingo, 266 N.W.2d 508, 513 (Minn.1978) (“[B]y substantive rights the legislature was referring to statutes which declare what acts are crimes and prescribe punishment for their violation, rather than statutes which regulate the steps by which the guilt or innocence of one who is accused of violating a criminal statute is determined.”). Notice of removal constitutes merely a step in the pretrial process and a method by which a judge may be replaced. Consequently, removal is a procedural matter governed by Minn. R.Crim. P. 26.03, subd. 13(4) rather than Minn.Stat. § 542.16.

II.

The next issue is whether appellant’s oral motion to remove Judge Schroeder complied with Minn. R.Crim. P. 26.03, subd. 13(4). Appellant argues that his motion to remove was proper regardless of whether it complied with the rule’s procedural requirements, and that any argument to the contrary is “relentlessly formalistic.”

Although “the right to peremptorily challenge a judge shall be liberally construed to safeguard in both fact and appearance the constitutional right to a fair and impartial trial,” McClelland v. Pierce, 376 N.W.2d 217, 220 (Minn.1985) (citation omitted), it is equally true that the right of removal “may be waived by failure to seasonably assert it.” Jones v. Jones, 242 Minn. 251, 262, 64 N.W.2d 508, 515 (1954). Here, appellant waived his right to seek the peremptory removal of Judge Schroeder by failing to file his notice of removal with the court administrator and by failing to bring his motion for removal in a timely manner.

First, Rule 26.03, subd. 13(4) explicitly directs parties seeking removal to “serve on the other party and file with the court administrator a notice to remove the judge assigned to a trial or hearing.” Parties must file properly to secure a judge’s removal. See McClelland, 376 N.W.2d at 219. It is undisputed that appellant never filed a notice of removal with the court administrator either before or after bringing his oral motion to remove. Cf. Wiedemann, 228 Minn. at 179, 36 N.W.2d at 813 (noting that counsel filed required affidavit even though it was untimely).

Second, appellant acknowledges that he did not seek removal within seven days of receiving notice that Judge Schroeder would preside over the case. See Minn. R.Crim. P. 26.03, subd. 13(4) (“The notice shall be served and filed within seven (7) days after the party receives notice of which judge is to preside at the trial or hearing * * *.”). Although appellant argues that the lateness of his motion was justified because he sought removal “at the very first moment [he] personally saw who the judge was,” the seven-day time limit serves the important purpose of preserving parties’ and the courts’ limited resources by guarding against “unreasonable delay, expense, surprise, and inconvenience.” Jones, 242 Minn. at 261, 64 N.W.2d at 514. It is therefore the mutual responsibility of defendants and their trial counsel to communicate so that the motion to remove can be brought within the prescribed time limit. Moreover, we are especially disinclined to excuse appellant’s lateness when he has made no attempt to show that the denial of his motion resulted in actual prejudice.

For these reasons, we hold that Minn. R.Crim. P. 26.03, subd. 13(4) governs the peremptory removal of judges from Minnesota criminal proceedings. We further hold that the district court did not err in denying appellant’s motion to remove because appellant neither filed a notice of removal with the court administrator nor made his oral motion within the time limitation set forth in Minn. R.Crim. P. 26.03, subd. 13(4). Accordingly, we affirm.

Affirmed.

      . The other citations in the May 12 letter are irrelevant for purposes of this appeal, as Minn. R. Civ. P. 63.03 sets forth the procedure for filing a notice of removal in civil cases and Minn.Stat. § 542.13 (2000) states that no judge may preside over a case where the judge has some interest or bias. This case does not involve any allegation of interest or bias.

      . Appellant cites Wiedemann v. Wiedemann, 228 Minn. 174, 179, 36 N.W.2d 810, 813 (1949), to support the proposition that an imperfect filing will not necessarily defeat a party’s right of removal. The holding in Wiedemann, however, was narrow and the case distinguishable on its facts. In Wiede-mann, a civil defendant gave the parties and the judge sufficient notice of his motion to remove when he sent a letter six weeks before a motion hearing asking the judge to remove himself, and then filed the required affidavit of prejudice at the hearing. Id. Although the affidavit was untimely, we held that the judge erred in declining to remove himself because the defendant substantially complied with the removal process. See id. In this case, appellant made no such efforts to provide advance notice of his intention to seek removal or to file an appropriate notice of removal with the court administrator. Further, while this case involves the automatic right of removal, there is no claim on appeal of prejudice to the appellant.

      . We also note that appellant failed to seek a writ of prohibition from the court of appeals after Judge Schroeder denied his motion to remove. It is well settled that "[t]he proper remedy to pursue when a motion to remove has been denied is to seek a writ of prohibition.” Cermak, 350 N.W.2d at 331. Such a writ prevents a judge from proceeding in a matter where he has been disqualified by a properly filed notice of removal, see McClelland, 376 N.W.2d at 219, and “avoid[s] the possible] * * * waste of time, money, and effort required of all parties by a procedure which might involve two trials and possibly two appeals in order to adjudicate the issue.” Smith v. Tuman, 262 Minn. 149, 154, 114 N.W.2d 73, 77 (1962); see also State v. Scruggs, 421 N.W.2d 707, 717 (Minn.1988) (noting that a writ of prohibition is often necessary because it is difficult to review pretrial procedures after a fair trial has occurred). Thus, a posttrial appeal to this court was not the appropriate way for appellant to obtain review of the denial of his motion to remove.


author: Alan C. Page Associate Justice.

text:
    In re Petition for DISCIPLINARY ACTION AGAINST Englebert Chia AKONG, an Attorney at Law of the State of Minnesota.
    No. C9-00-2236.
    Supreme Court of Minnesota.
    Feb. 1, 2001.
   ORDER

The Director of the Office of Lawyers Professional Responsibility has filed a petition for disciplinary action alleging that respondent Englebert Chia Akong has committed professional misconduct warranting public discipline, namely, respondent misrepresented to the Board of Immigration Appeals that another attorney had agreed to substitute as attorney for three of respondent’s clients by signing that attorney’s name to pleadings filed with the court and failed to appear or prepare for another client’s INS asylum interview, failed to return the Ghent’s phone calls or notify her of his termination of practice, and failed to return her file, in violation of Rules 1.3, 1.4, 1.16, 4.1, and 8.4(c) and (d), Minnesota Rules of Professional Conduct.

Respondent admits his conduct violated the Rules of Professional Conduct, waives his rights pursuant to Rule 14, Rules on Lawyers Professional Responsibility, and has entered into a stipulation with the Director wherein they jointly recommend that the appropriate discipline is a public reprimand and indefinite probation. If respondent, who currently resides in Cameroon, returns to practice law in Minnesota, he shall not begin to practice until he has notified the Director’s Office of his return and a supervisor has signed a consent to supervise his practice. Respondent’s indefinite probation shall end upon the completion of two years of supervised probation, which shall commence upon a supervisor’s signing a consent to supervise, and shall be subject to the following terms and conditions:

a. Respondent shall cooperate fully with the Director’s Office in its efforts to monitor compliance with this probation and promptly respond to the Director’s correspondence by the due date. Respondent shall cooperate with the Director’s investigation of any allegations of unprofessional conduct which may come to the Director’s attention. Upon the Director’s request, respondent shall provide authorization for release of information and documentation to verify compliance with the terms of this probation.

b. Respondent shall abide by the Minnesota Rules of Professional Conduct.

c. Respondent shall cooperate fully with the supervisor’s efforts to monitor compliance with this probation. Respondent shall contact the supervisor and schedule a minimum of one in-person meeting per calendar quarter. Respondent shall submit to the supervisor an inventory of all active client files by the first day of each month during the probation. With respect to each active file, the inventory shall disclose the client name, type of representation, date opened, most recent activity, next anticipated action, and anticipated closing date. Respondent’s supervisor shall file written reports with the Director at least quarterly, or at such more frequent intervals as may reasonably be requested by the Director.

d. Respondent shall initiate and maintain office procedures which ensure that there are prompt responses to correspondence, telephone calls, and other important communications from clients, courts and other persons interested in matters which respondent is handling, and which will ensure that respondent regularly reviews each and every file and completes legal matters on a timely basis.

e. Within 30 days from the signing of the consent to supervise, respondent shall provide to the Director and to the probation supervisor a written plan outlining office procedures designed to ensure that respondent is in compliance with probation requirements. Respondent shall provide progress reports as requested.

This court has independently reviewed the file and approves the jointly recommended disposition.

IT IS HEREBY ORDERED that respondent Englebert Chia Akong is publicly reprimanded and placed on indefinite probation pursuant to the agreed-upon terms set forth above. In addition, respondent shall be current with attorney registration fee and Continuing Legal Education requirements before commencing supervised probation. Respondent shall pay $900 in costs and disbursements pursuant to Rule 24, Rules on Lawyers Professional Responsibility.

BY THE COURT:

Alan C. Page Associate Justice.


author: Alan C. Page Associate Justice

text:
    In re Petition for DISCIPLINARY ACTION AGAINST Donald J. FRALEY, an Attorney at Law of the State of Minnesota.
    No. CX-00-1936.
    Supreme Court of Minnesota.
    Feb. 1, 2001.
   ORDER

The Director of the Office of Lawyers Professional Responsibility has filed a petition for disciplinary action alleging that respondent Donald J. Fraley has committed professional misconduct warranting public discipline, namely, respondent collected attorney fees in a workers’ compensation matter without complying with required statutory provisions, improperly obtained a signature on an attorney fee withholding request, and improperly provided financial assistance to a client in connection with a workers’ compensation matter in violation of Rules 1.8(a) and (e), 3.4(c), 8.4(c) and (d), Minn. R. Prof. Conduct.

Respondent admits his conduct violated the Rules of Professional Conduct, waives his rights pursuant to Rule 14, Rules on Lawyers Professional Responsibility (RLPR), and has entered into a stipulation with the Director wherein they jointly recommend that the appropriate discipline is a public reprimand and payment of $900 in costs and disbursements pursuant to Rule 24, RLPR.

This court has independently reviewed the file and approves the jointly recommended disposition.

IT IS HEREBY ORDERED that respondent Donald J. Fraley is publicly reprimanded and that he shall pay $900 in costs and disbursements pursuant to Rule 24, RLPR.

BY THE COURT:

Alan C. Page Associate Justice


author: LANCASTER, Justice.

text:
    SKYLINE PRESERVATION FOUNDATION, Relator, v. COUNTY OF POLK, Respondent.
    No. C0-00-360.
    Supreme Court of Minnesota.
    Feb. 8, 2001.

      Eric J. Peck, Jeffrey J. McNaught, Thomas F. Pursell, Lindquist & Vennum, P.L.L.P., Minneapolis, for relator.
    Wayne H. Swanson, Polk County Atty., Larry D. Orvik, Asst. Polk County Atty., Crookston, for respondent.
   OPINION

LANCASTER, Justice.

Relator Skyline Preservation Foundation, Inc. (Skyline) appeals from a Minnesota Tax Court summary judgment holding that Skyline is not an institution of purely public charity, which would exempt it from taxation under Article X of the Minnesota Constitution and Minn.Stat. § 272.02, subd. 1(6) (Supp.1997). Under Minn.Stat. § 278.01 (2000), Skyline petitioned the tax court to review respondent Polk County’s 1997 classification of Skyline’s real property as nonexempt. The tax court applied the guidelines outlined by this court in North Star Research Institute v. County of Hennepin, 306 Minn. 1, 236 N.W.2d 754 (1975), and reasoned that an entity can only satisfy those factors 'based on actual operations and not based on future plans. Because Skyline was not at the time of the court’s decision providing any services to the public, the tax court held that it failed to satisfy its burden of proving compliance with the North Star factors. Because we conclude that a fledgling organization is not precluded from qualifying as a purely public charity, we reverse.

Taxes shall be uniform upon the same class of subjects and shall be levied and collected for public purposes, but * * * institutions of purely public charity * * * shall be exempt from taxation except as provided in this section. * * * The legislature by law may define or limit the property exempt under this section * * *.

The property at issue in this case is the former Cathedral of the Immaculate Conception (the cathedral) in Crookston, Minnesota, and the land on which it stands. The cathedral was constructed in 1912 by the Roman Catholic Church and served as the cathedral for the Diocese of Crookston until it was decommissioned in 1990. In 1990 the diocese conveyed the cathedral and its adjacent buildings to Care and Share, Inc. Care and Share operated a homeless shelter in the adjacent buildings, but the cathedral sat idle. In 1996, Care and Share divided its property into two parcels, separating off the cathedral, which in October of that year was deeded to Skyline.

Skyline was incorporated as a nonprofit corporation under Minn.Stat. ch. 317A (2000) in August of 1996 and is exempt from federal income taxes under section 501(c)(3) (Supp.2000) of the Internal Revenue Code. Skyline was organized for a two-phase purpose: first, to acquire the cathedral and preserve it as a landmark; and second, to develop the cathedral into a community center devoted to entertainment, recreation, and education.

The use and disposition of the property at issue is restricted by covenant and Skyline’s Articles.of Incorporation. The deed to the cathedral received by Skyline contains restrictive covenants that run with the property and prohibit its use for liquor sales, gambling, any medical institution, or “any purpose that conflicts with the property’s prior use as * * * a Catholic Cathedral.” Skyline’s Articles of Incorporation require that in the event of dissolution, its remaining assets must be distributed to entities that are organized and operated exclusively for charitable, educational, religious, or scientific purposes and are exempt from federal taxes under section 501(c)(3). The Articles of Incorporation preclude Skyline’s directors, officers, and members from realizing pecuniary gain through the corporation or its diss'olution.

In October 1998 Skyline obtained a listing for the cathedral on the National Register of Historic Places based on the cathedral’s role in state history. This designation implicates state law that further constrains alterations in and disposition of the property. Minn.Stat. § 138.665 (2000) (providing that state departments, agencies, and political subdivisions have a responsibility to protect listed properties and that state departments and agencies are required, before licensing an undertaking that will affect listed properties, to agree with the state historical society on means of mitigating adverse effects to the property).

The exterior of the cathedral is generally in good condition and consulting architects consider the building to be structurally sound, but the interior is in disrepair and there is no active heating or plumbing system. Costs for necessary repairs and a heating system are estimated to be $175,000. In its August 1996 application to the Internal Revenue Service for federal tax exempt status, Skyline reported $2,600 cash on hand with which to carry out its proposed charitable activities. All revenue received had been obtained exclusively through donations, gifts, and membership fees.

In late 1996 Skyline requested and received exemption application forms from the Polk County Assessor’s office. Skyline submitted its application in the early months of 1997. In May 1997 the county assessor sent a letter to Skyline advising that under an oral recommendation from the state Department of Revenue, Skyline was considered a nonprofit community service organization and its property was nonexempt. At the next meeting of the Polk County Board of Equalization, Skyline requested reconsideration of that decision. The Board did not change the classification of Skyline’s property.

Skyline petitioned the tax court to review the classification of its property in March 1998. The parties stipulated to the facts and submitted cross-motions for summary judgment. The tax court found that Skyline satisfied only two of the six North Star factors and thus was not an institution of purely public charity. The tax court’s conclusion that four of the factors were not satisfied was based on the fact that Skyline lacked evidence of actual current operations that would fulfill those criteria. The tax court reasoned that “a careful reading indicates that the exemption applies to organizations performing current, and not contemplated, charitable activities.” Skyline Pres. Found. v. County of Polk, No. C8-98-423, 2000 WL 2596, at *4 (Minn. T.C. Dec. 29, 1999). Skyline now appeals from the tax court’s determination.

This court’s review of tax court decisions is limited to determining whether the tax court lacked jurisdiction, whether the tax court’s decision was not justified by the evidence or was not in conformity with the law, or whether the tax court committed any other error of law. Minn.Stat. § 271.10, subd. 1 (2000); Cmty. Mem’l Home at Osakis, Minn., Inc. v. County of Douglas, 573 N.W.2d 83, 86 (Minn.1997). We review summary judgments to determine whether there are any genuine issues of material fact and whether the lower court erred in its application of law. A & H Vending Co. v. Comm’r of Revenue, 608 N.W.2d 544, 546 (Minn.2000). Neither party argues that any issues of fact are in dispute, so we review only for error in the tax court’s application of law. This is a question of law subject to de novo review. Zip Sort, Inc. v. Comm’r of Revenue, 567 N.W.2d 34, 37 (Minn.1997).

Minnesota Statutes § 272.02, subd. 1(6), exempts from taxation “[ijnstitutions of purely public charity.” Because all property is presumed taxable and exemption from property tax liability is an exception to this general rule, exemptions are to be strictly construed and parties seeking exemptions bear the burden of proof. See Am. Ass’n of Cereal Chemists v. County of Dakota, 454 N.W.2d 912, 914 (Minn.1990).

In North Star, we listed six factors that guide us in deciding whether an organization is an institution of purely public charity:

1. whether the stated purpose of the undertaking is to be helpful to others without immediate expectation of material reward;
2. whether the entity involved is supported by donations and gifts in whole or in part;
3. whether the recipients of the “charity” are required to pay for the assistance received in whole or in part;
4. whether the income received from gifts and donations and charges to users produces a profit to the charitable institution;
5. whether the beneficiaries of the “charity” are restricted or unrestricted and, if restricted, whether the class of persons to whom the charity is made available is one having a reasonable relationship to the charitable objectives;
6. whether dividends, in form or substance, or assets upon dissolution are available to private interests.

306 Minn. at 6, 236 N.W.2d at 757.

The tax court found that Skyline’s Articles of Incorporation and other evidence showed that Skyline satisfies the first and sixth factors. We agree and limit our analysis to factors two through five.

The tax court determined that Skyline failed to demonstrate compliance with factors two through five. The primary reason for this determination was that Skyline had no record of actual operation. As noted above, the tax court concluded that “the exemption applies to organizations performing current, and not contemplated, charitable activities.” Skyline, 2000 WL 2596, at *4. Whether Skyline’s planned services and its projected means of providing them would satisfy the North Star factors was, in the tax court’s view, irrelevant.

We disagree with the tax court’s conclusion that only an active, operating organization can qualify for tax exemption as a purely charitable institution. First, the tax court’s analysis places too much weight on the use of present tense verbs in this court’s articulation of the six factors in North Star. Rather than reflecting a determination that only evidence of actual current operations can satisfy those factors, an issue that was not before the court in North Star, the choice of verb tense was likely due to the fact that the organization seeking exempt status was an operating institution. See North Star, 306 Minn. at 3-4, 236 N.W.2d at 755-56.

Moreover, to construe North Star as the tax court did here would deprive the tax assessor of the discretion to exempt from taxation those fledging organizations that have not developed a track record of actual operation but whose purpose clearly is to provide services that would qualify them as purely charitable institutions and whose intended method of operation would satisfy the North Star factors. The evident purpose of the exemption is to foster and facilitate delivery of charitable services by private institutions by exempting them from taxation. That goal would not be well served by depriving organizations of the exemption at a time when they are likely to be in the greatest need of such tax exempt status. Although exemptions are to be strictly construed, they should not be interpreted in a manner that frustrates the very purpose of exemption.

We conclude that proof based on actual current operations is not the only method by which the North Star factors may be satisfied. Rather, a new organization that has not yet provided charitable services may nevertheless qualify as a purely charitable institution by demonstrating clearly that its planned operations are compatible with the North Star factors. That is not to say, however, that an organization may maintain tax exempt status indefinitely without fulfilling its charitable purpose. How long an organization should be permitted to enjoy exempt status without actually providing services is a question not before us today because this case involves a request for exemption from an organization that had just been formed. We examine the second through fifth North Star factors in this light.

The second North Star factor asks whether the entity is supported by donations or gifts in whole or in part. 306 Minn. at 6, 236 N.W.2d at 757. The tax court determined that Skyline is not adequately supported financially, and thus did not satisfy this factor. The tax court focused on whether the amount of funding received by Skyline is sufficient to support it, not on the extent to which the support, of whatever amount, came from donations. In contrast, our previous decisions suggest that the focus of the second factor is that the court consider whether a would-be charity receives an adequate percentage of its revenue from altruistic supporters. Care Inst., Inc. — Maplewood v. County of Ramsey, 576 N.W.2d 734, 739 (Minn.1998). Such an emphasis on where the money comes from, as opposed to how much is obtained, is particularly appropriate when gauging whether a nascent organization is a charitable institution, as a new entity may not have had the opportunity to find funding sufficient to fulfill its charitable goals. At the time of the decision by the county Board of Equalization, Skyline was a new organization and had received its support entirely in the form of gifts and membership fees. Skyline therefore fulfills this factor.

The third factor asks whether recipients of the organization’s benefits are required to pay for those benefits, in whole or in part. North Star, 306 Minn. at 6, 236 N.W.2d at 757. This factor is intended to assess whether people will benefit from the organization’s activities to an extent greater than if the organization were merely providing a service as part of the private market. Care Inst., Inc. — Maplewood, 576 N.W.2d at 739 (holding that payment of market rates for rent and services by residents at a health care facility supports a finding that the third factor is not satisfied); Cmty. Mem’l Home, 573 N.W.2d at 87 (holding that satisfaction of the third North Star factor requires a showing that benefits are provided free or at considerably reduced costs); Rio Vista Non-Profit Hous. Corp. v. County of Ramsey, 277 N.W.2d 187, 191-92 (Minn.1979) (holding that providing a service “at considerably less than market value or cost” is relevant to whether an organization fulfills the third factor). The tax court again focused on the use of the present tense in North Star’s articulation of this factor concerning payment for benefits and concluded that since no one was receiving benefits from Skyline, this factor was not satisfied.

Even if we assume that no one was receiving benefits from Skyline’s activities in early 1997, our inquiry under this factor is not complete. Skyline was a fledgling organization at that time, and could not be expected to provide immediately the benefits of the community center it planned for the future. For the purposes of evaluating this factor, the important fact is that there is no evidence that Skyline had any plans to charge users for the benefits it planned to provide through the community center. Skyline satisfies the third factor.

The fourth factor asks whether the organization’s income produces a profit. North Star, 306 Minn. at 6, 236 N.W.2d at 757. The tax court determined that Skyline did not satisfy this factor because Skyline’s minimal income made it impossible to determine whether Skyline would produce a profit if it had significant income.

Again, when a new organization seeks exempt status, evidence based on past and current performance is not the only way to demonstrate compliance with the required factors. At the time it was denied exempt classification, Skyline produced no profit. More importantly, Skyline’s projected revenue plans were in fact designed, at best, to meet the expenses of bringing its charitable goals to fruition. In 1997 there was no evidence that Skyline had ever produced a profit, nor was there any likelihood of this occurring. Skyline satisfies the fourth factor.

The fifth factor addresses whether the beneficiaries of the charity are restricted or unrestricted and, if restricted, whether the class of persons to whom the charity is restricted has a reasonable relationship to the charitable objectives. North Star, 306 Minn. at 6, 236 N.W.2d at 757. The tax court found, because there were no current beneficiaries, Skyline did not satisfy this factor. This court has considered another aspect of this factor to be whether an organization’s efforts “lessen[ ] the burdens of government.” White Earth Land Recovery Project v. County of Becker, 544 N.W.2d 778, 781 (Minn.1996). The tax court reasoned that because Skyline was not providing any benefits at the time of its decision, it could not determine whether Skyline’s programs would lessen the burdens of government, and therefore this factor was not satisfied.

Instead of concluding that the lack of present beneficiaries precludes compliance with this factor, for a new organization we again look at the organization’s structure and future plans. Skyline’s bylaws clearly demonstrate that the community center envisioned under phase two of its plan is to be an open, inclusive institution. As concerns the subfactor of lessening governmental burdens, Skyline intends to use the community center to provide educational, recreational, and entertainment opportunities. These certainly fall within the range of services provided by governmental facilities. Cf. North Star, 306 Minn. at 22-24, 236 N.W.2d at 765-66 (Kelly, J., concurring specially) (noting that the Guthrie Theatre Foundation had been granted purely public charity status by the tax court); Christian Bus. Men’s Comm. of Minneapolis, Inc. v. State, 228 Minn. 549, 560-61, 38 N.W.2d 803, 812 (1949) (holding use' of property for a youth center is a purely public charitable use and a “contribution to the public good”). At the time Skyline’s property was classified nonexempt, there was no evidence that Skyline had restricted or had any plans to restrict the beneficiaries of its acts. Because of this, and because Skyline’s planned use of the cathedral would lessen the burden of government, we conclude that Skyline satisfies the fifth factor.

Thus we conclude that when properly viewed, based on Skyline’s status as a new organization at the time of the county’s denial of exempt status, Skyline satisfies the second through fifth North Star factors, as well as the first and sixth, which the tax court found were met. Therefore, Skyline qualified as a purely public charity and its property should have been classified as exempt in 1997.

We recognize Polk County’s concern that looking to possible future use of property by a fledgling organization, as we have done in applying the North Star factors, may open the public charity exemption to fraud by organizations that declare charitable goals they have no intention of pursuing. It is important to recognize, though, that we do not hold that mere declaration of intent is sufficient to fulfill any of factors two through five, nor that an organization has unlimited time to turn aspirations into action. We require the entity seeking tax-exempt status to provide clear evidence of commitment to the charitable goals described, including, but not limited to, the absence of any actions contrary to such commitment. We simply recognize that a new organization may be granted a reasonable period of time in which to bring such commitment to tangible fruition.

Here, all evidence as of early 1997 points to Skyline having a fully charitable intent for the-use of the cathedral. Additionally, the covenants in the deed to the cathedral received by Skyline and Skyline’s Articles of Incorporation constrain the use of the property and Skyline had taken no action contrary to its eventual charitable purpose of creating a community center. Skyline had existed and held the cathedral for only a few months when the exemption was denied. It had not yet been allowed a reasonable time to accomplish its charitable goals.

We have used this forward-looking approach before:

A use of a property which merits tax exemption is a present use and not an intended future use, subject, however, to the proviso that where a corporation * * * entitled to hold its property exempt from taxation acquires property with the intention of devoting it to a tax-exempt use, the right of exemption carries with it * * * the opportunity to adapt and fit the property for use within a reasonable time in execution of plans or arrangements made for the purpose * * *. Whether due diligence has been exercised in adapting the property to a tax-exempt purpose is a question of fact to be decided according to the circumstances of each case.

Christian Bus. Men’s Comm., 228 Minn. at 557-58, 38 N.W.2d at 810 (citation omitted). We noted in North Star that the fundamental considerations underlying the six factors are whether individual profits are realized and whether the charity is a subterfuge for the accommodation of a select few. 306 Minn. at 6, 236 N.W.2d at 757. Allowing a new organization a tax exemption for a reasonable time until it can commence providing its planned charitable benefits furthers the purpose of the exemption to foster charitable enterprises and does nothing to undermine these crucial considerations where its charitable purpose is clearly demonstrated by stated objectives, organizational structure, and future plans.

We neither hold nor suggest that an organization can maintain exempt status as a purely public charity indefinitely based only on goals, plans, and projections. An organization may not merely buy and hold property and continue to maintain an exemption as a purely public charity based only on planned future use of the property where there is no evidence of efforts to bring the plans to fruition. To retain exempt status over time an organization must demonstrate progress toward implementing its plans and eventually that it is an ongoing institution of purely public charity. If it fails to do so, its property may be reclassified.

Here, the question is whether- at the time of Polk County’s decision to deny exempt status, Skyline, then a newly-formed organization, was clearly demonstrated to be a purely public charity under Minnesota law. We hold it was.

Reversed.

      . Article X, § 1 of the Minnesota Constitution states, in relevant part:

      . Minnesota Statutes § 272.02, subd. 1, provides, in relevant part:

      All property described in this section to the extent herein limited shall be exempted from taxation:
      (6) Institutions of purely public charity * * *.
      Minnesota Statutes § 272.02, subd. 1(6) was renumbered in 1999 as subdivision 7. Minn.Stat. § 272.02, subd. 7 (2000).

      . The property had been exempt from taxation in the years prior to its transfer to Skyline, first as church property and then as property of a purely public charity. See Minn.Stat. § 272.02, subds. 1(5), 1(6) (1996).

      . The Department of Revenue reiterated this opinion in writing in April 1998.

      . Minnesota Statutes § 273.13, subd. 25(d)(3) (2000), states that “Class 4c property includes: * * * real property up to a maximum of one acre of land owned by a nonprofit community service oriented organization * ⅜ if f c]ass 4C property is nonexempt. Id.

      . The resulting tax on the property, payable in 1998, by county, city, school district, and other special taxing districts was $984. The assessed value of the property was $10,000 for the building and $19,000 for the land.

      . In this regard, we note that the tax court seemed to address the status of Skyline at the time of the summary judgment motions in 1999. Because the issue on review is the validity of the 1997 decision of the county denying exempt status to Skyline’s property, the tax court should have focused on the facts as they existed at the time of the county’s decision. Skyline’s failure to make substantial progress toward implementation of its program two years later could be relevant to its tax status at that time, but not for the tax year at issue here.

      . Skyline argues that preserving the cathedral from likely demolition was a major charitable benefit to the Crookston area, and because it was provided at no cost, this act by itself would fulfill the third North Star factor. Preservation of historic buildings has been recognized as providing a benefit to the public. Minn.Stat. §§ 116B.01, 116B.02, subd. 4 (2000) (providing protection of Minnesota Environmental Rights Act to historical resources); Penn Cent. Transp. Co. v. New York City, 438 U.S. 104, 107-08, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978) (acknowledging "widely shared belief that structures with special historic, cultural, or architectural significance enhance the quality of life for all”). Nonetheless, we do not need to determine whether an organization that has as its sole and continuing purpose the preservation of a historical building is a purely public charity.