author: ROBERT H. SCHUMACHER, Judge.

text:
    STATE of Minnesota, Appellant, v. Geoffrey HICKMAN, Respondent.
    No. A03-94.
    Court of Appeals of Minnesota.
    Aug. 5, 2003.

      Mike Hatch, Attorney General, St. Paul, MN; and Amy Klobuchar, Hennepin County Attorney, Patrick C. Diamond, Senior Assistant County Attorney, Minneapolis, MN, for appellant.
    Paul C. Engh, Minneapolis, MN; and Robert G. Malone, St. Paul, MN, for respondent.
    Considered and decided by SCHUMACHER, Presiding Judge, RANDALL, Judge, and KALITOWSKI, Judge.
   OPINION

ROBERT H. SCHUMACHER, Judge.

This appeal is from a sentence imposed for five counts of tax evasion under Minn. Stat. § 289.63, subd. 1(a) (1998). The state argues that the district court abused its discretion in granting respondent Geoffrey Hickman a downward dispositional departure. We affirm.

FACTS

Hickman was charged in March 2002 with five counts of felony tax evasion for failing to file Minnesota state tax returns for the 1996,1997, 1998,1999, and 2000 tax years. The complaint alleged that Hickman was a Northwest Airlines pilot, had flown out of the Minneapolis-St. Paul International Airport since 1989, had built a home in Mendota Heights on which he claimed a homestead exemption, and had claimed a Florida residence during those tax years. The complaint alleged that Hickman listed Florida as his residence on his payroll withholding forms at Northwest, although there was no evidence that he lived in Florida or maintained more than minimal contacts with that state. His ex-wife and children lived in Florida.

On November 13, 2001, investigators for the Minnesota Department of Revenue obtained and executed a search warrant at Hickman’s Mendota Heights residence. The officers, with Hickman’s cooperation, seized a number of records regarding his residency status and his personal income for the relevant tax years. Hickman’s W-2 forms disclosed that he earned $78,681 in 1996, $110,962 in 1997, $173,699 in 1998, $203,394 in 1999, and $185,578 in 2000. Hickman did not file a Minnesota tax return for any of those years. His total state tax liability was about $49,000.

The complaint alleged that although Hickman maintained a post office box in Carabelle, Florida, that box bore no relationship to any real property, and police in that small community knew nothing of Hickman. Hickman had applied for, and received, a Florida driver’s license, and had registered to vote in Florida but had been removed from Florida voting rolls after never having voted there. The complaint alleged that Hickman’s Mendota Heights home was well furnished and contained a plethora of personal records, personal property, and personal mail addressed to that residence. The complaint alleged that Hickman admitted to investigators that he resided there since 1995 and that he had not filed a .Minnesota tax return since .1994, when he won $100,000 in the state lottery.

Hickman waived his right to a trial by jury, and the case was tried to the court. The district court issued an order finding that Hickman “knew of his obligation to file Minnesota individual income tax returns for all relevant years and willfully failed to file the required returns.” The court found Hickman guilty and ordered a presentence investigation.

The presentence investigation detailed Hickman’s explanation for his conduct, including Hickman’s statement that he had claimed Florida as his state of residence since the 1960’s when he was in the Air Force. Hickman also claimed that he did not read the homestead exemption application form and that he believed he could validly claim Florida residency because he owned a home there, his children were in school there, and he planned eventually to live there. The presentence investigation noted that Hickman also stated that he tried to change his residency status in Northwest’s payroll computer system in October 2001, the month before the search warrant was executed, but was unable to correct it until December. The presen-tence investigation noted that Hickman had paid the taxes due for 1996-2000, plus penalties and interest, and that Hickman was a low risk to reoffend. Noting there were both aggravating and mitigating factors, the presentence investigation stated that “incarceration is appropriate for such offense behavior.”

The district court, stating it was departing from the guidelines, stayed imposition on all five counts. The court imposed two-year probationary periods on each count, with two being consecutive to the first probationary period, making a total of six years of probation. In support of its dis-positional departure, the court cited Hickman’s amenability to probation, his acceptance of responsibility for his acts, his “lifetime pattern of law-abiding behavior,” and the fact that he had accrued all his criminal history points at one sentencing. The court then justified the consecutive service of three of the probationary periods, which it construed as a departure, on the grounds that- Hickman’s tax evasion constituted a major economic offense.

- ISSUES

1. Did the district court abuse its discretion in staying Hickman’s sentence?

2. Did the district court impose a non-felony sentence, and, if so, was it reversible error to do so?

ANALYSIS

1. The decision to depart from the sentencing guidelines rests within the district court’s discretion and will not be reversed absent a clear' abuse of discretion. State v. Givens, 544 N.W.2d 774, 776 (Minn.1996).

The state argues that the district court imposed a downward dispositional departure in staying imposition of Hickman’s sentence, and that this departure was not supported by substantial and compelling mitigating circumstances. In particular, the state argues that Hickman is not amenable to probation, in part because he did not take responsibility for “willfully” failing to file a Minnesota tax return, which is an element of the felony offense of which he was convicted.

The district court may depart from the presumptive sentence if it specifies “substantial and compelling” circumstances to support the departure. State v. Law, 620 N.W.2d 562, 564 (Minn.App.2000), review denied (Minn. Dee. 20, 2000). This court will generally not interfere with a district court’s decision to depart downward. State v. Gebeck; 635 N.W.2d 385, 389 (Minn.App.2001). The court may do so, however, if it has a “strong feeling” that the departure is inappropriate. Law, 620 N.W.2d at 565 (quoting State v. Malinski, 353 N.W.2d 207, 209 (Minn.App.1984), review denied (Minn. Oct. 16, 1984)). A defendant’s amenability to probation may by itself support a downward dispositional departure. Gebeck, 635 N.W.2d at 389.

The state argues that Hickman is not amenable to probation because he continues to minimize his criminal conduct. The state also argues that the downward departure reflects an improper reliance on prohibited employment factors.

The state’s first argument confuses, to a certain degree, amenability to probation and amenability to treatment. See State v. Donnay, 600 N.W.2d 471, 474 (Minn.App.1999) (noting defendants without treatment needs are not disqualified from probation), review denied (Minn. Nov. 17, 1999). The presentence investigation did not recommend any treatment program for Hickman, nor did the district court make treatment a condition of probation. Admitting guilt, and taking responsibility for one’s criminal conduct, is a critical factor in an offender’s amenability to treatment. See generally State ex rel. Morrow v. LaFleur, 590 N.W.2d 787, 792-93 (Minn.1999) (holding inmate was properly terminated from treatment program and disciplined because he refused to admit sexual offense). But amenability to probation depends on an offender’s ability to comply with the conditions of probation and benefit from the opportunity for rehabilitation that probation affords. See State v. Holland, 421 N.W.2d 382, 389 (Minn.App.1988) (reversing execution of presumptively stayed sentence where record showed defendant was willing and able to comply with requirements of probation officer despite disruptive behavior in court). Hickman has already paid the state for the unpaid taxes, meeting his duty to make restitution, which is a frequent condition of probation. The presentence investigation noted there is a low risk that Hickman would reoffend.

An offender’s remorse is a relevant factor in assessing his amenability to a probation that does not include treatment. See Donnay, 600 N.W.2d at 474 (concluding defendant’s remorse was a factor making him particularly amenable to probation that did not include treatment). The supreme court has identified a non-exclusive list of factors as relevant to amenability to probation, those being “the defendant’s age, his prior record, his remorse, his cooperation, his attitude while in court, and the support of friends and/or family.” State v. Trog, 323 N.W.2d 28, 31 (Minn.1982). Although Hickman’s minimization of his offense indicates he was less than fully remorseful, remorse is only one of the Trog factors. And Hickman accepted responsibility for his conduct by making prompt repayment.

Hickman’s age (59), his lack of any criminal record, his cooperation, especially with the Minnesota Department of Revenue agents who searched his home, and his positive attitude in court, all support the district court’s conclusion that Hickman is particularly amenable to probation. The district court also properly cited as a mitigating factor the fact that Hickman accrued all his criminal history points in one sentencing. See Minn. Sent. Guidelines II.D.2.a. (4)(b).

The state’s second argument challenges the district court’s consideration of Hickman’s employment status as an airline pilot in staying his sentence. The guidelines prohibit the court from considering occupation, employment history, and other “[e]mployment factors” as reasons for departure. Minn. Sent. Guidelines II.D.l.c. But the Trog factors support the district court’s conclusion that Hickman is particularly amenable to probation. And the court did not cite Hickman’s employment status as a factor in its decision.

The state also argues that prison sentences are necessary to deter serious tax evaders like Hickman. But the district court imposed a 150-day jail term as a condition of probation. This lengthy period of incarceration, although not the equivalent of a prison sentence, is a significant deterrent to a white-collar criminal. The state’s argument that the district court’s sentence leaves the state no significant criminal sanction as a deterrent against tax evasion is without merit.

We conclude that the district court did not abuse its discretion in finding sufficient mitigating factors to warrant a downward dispositional departure. Therefore, we need not address whether the district court could have imposed the same stayed sentence without departing by finding Hickman’s five offenses were part of a single behavioral incident and therefore Hernandez sentencing could not be used. See generally State v. Hernandez, 311 N.W.2d 478, 479-81 (Minn.1981) (holding that .defendant’s criminal history score may be increased for other convictions sentenced on same day that are not part of same behavioral incident).

2. The state argues that the district court improperly attempted to impose a non-felony sentence based on Hickman’s employment status, although the state contends that attempt was unsuccessful.

A felony conviction is “deemed to be” a gross misdemeanor if the “sentence imposed” is within the limits for a gross misdemeanor sentence. Minn.Stat. § 609.18, subd. 1(1) (2000). It may also be “deemed to be” a misdemeanor if the imposition of sentence is stayed and the defendant successfully completes probation. Id., subd. 1(2). At sentencing, the district court expressed the opinion, in response to a question from the prosecutor, that the convictions were “deemed to be a gross misdemeanor,” because there was a two-year probationary period for each. There are five sentencing orders in the file, none of which indicate the level of conviction.

We conclude it is unnecessary to address the state’s argument because the level of Hickman’s convictions appears to have no present effect on the criminal prosecution. A party is not entitled to appellate review of an advisory opinion of the district court. State v. Johnson, 291 Minn. 407, 192 N.W.2d 87, 92 (1971); see State v. Roesch, 355 N.W.2d 754, 755 (Minn.App.1984) (holding that language in trial court memorandum issued following remand expressing intent to rule differently if supreme court reversed court of appeals could not be reviewed on appeal because it had no legal effect), review denied (Minn. Dec. 20, 1984). The district court stayed imposition of sentence, postponing the determination of the length of any executed term of incarceration until the day, should it arrive, that the stay is revoked.

The state makes no attempt to show that the district court’s opinion that the sentence is a gross misdemeanor sentence has any present effect • on the criminal prosecution. Accordingly, we do not address it.

DECISION

The district court did not abuse its discretion in imposing a downward disposi-tional departure based on Hickman’s particular amenability to probation.

Affirmed.


source: Caselaw Access Project

author: SABERS, Justice (on reassignment). MEIERHENRY, Justice

license: Public Domain

text:
    2003 SD 79
    JENCO, INC. successor to St. Goliard’s Investment Co., a South Dakota Corporation, d/b/a Happy Jack’s East, Plaintiff and Appellant, v. The UNITED FIRE GROUP, Defendant and Appellee.
    No. 22493.
    Supreme Court of South Dakota.
    Considered on Briefs Feb. 11, 2003.
    Reassigned May 12, 2003.
    Decided July 9, 2003.

      James L. Jeffries, Jeffries Law Office, Rapid City, South Dakota, Attorneys for plaintiff and appellant.
    Jennifer K. Trucano, Gunderson, Palmer, Goodsell & Nelson, Rapid City, South Dakota, Attorneys for defendant and ap-pellee.
   SABERS, Justice (on reassignment).

[¶ 1.] Jenco Inc. filed a claim against United Fire Group (United Fire) alleging United Fire breached the parties’ contract of insurance by failing to pay a claim under an employee dishonesty provision. The trial court dismissed the claim with prejudice for failure to prosecute. We affirm.

FACTS

[¶ 2.] On November 18, 1997, approximately $18,000 in cash was stolen from a casino operated by Jenco. Jenco asserted that a casino employee, Dianne Iverson, was involved with the robbery. Iverson was not charged in the theft, but Jenco terminated her. Jenco filed an insurance claim with United Fire under an employee dishonesty provision. United Fire denied the claim and Jenco filed suit alleging breach of contract. United Fire denied that it breached the contract, and although United Fire asserted in its Answer that there was a reasonable basis for its denial of payment, neither document expressly indicated the basis.

[¶ 3.] Jenco filed its original Complaint on May 29, 1998 and an Amended Complaint on March 17, 1999. United Fire filed an Amended Answer on March 23, 1999. Judge Fitzgerald conducted a status hearing on April 26, 1999 and entered a scheduling order on May 5, 1999. The scheduling order set a deadline to amend pleadings by May 26, 1999, a deadline for discovery of July 26, 1999 and further ordered “[t]hat by August 5, 1999, counsel for plaintiff and counsel for defendant shall mutually agree as to a trial date.” Accompanying the scheduling order was a scheduling worksheet which indicated that Judge Fitzgerald wanted the clerk to bring the file to his attention in 90 days. On July 14, 1999, United Fire took the depositions of Iverson, a detective and the casino manager.

[¶ 4.] By letter dated August 5, 1999, Jennifer Trucano, attorney for United Fire, informed Judge Fitzgerald that several discovery issues were still pending. She indicated that another status conference had been scheduled to “discuss possible date revisions and the need for an extension of time to complete discovery.” She also indicated that they hoped to be able to set “a reasonable trial date at that time.”

[¶ 5.] On August 9, 1999, United Fire filed an offer of judgment of $5,000 plus accrued costs. At the status hearing on August 22, 1999, Judge Fitzgerald ordered Jenco to obtain new counsel because its attorney had a conflict of interest. Although no written order directing substitution of counsel was entered, the parties do not dispute the oral order.

[¶ 6.] On October 5, 1999, United Fire wrote Jenco a letter inquiring whether it had retained substitute counsel. Jenco did not respond. No other action was taken until March 25, 2002, when Jenco requested a scheduling order from the court. On March 26, 2002, United Fire filed a motion to dismiss based on Jenco’s failure to prosecute and for disregarding the court’s order to obtain substitute counsel. On May 15, 2002, substitute counsel for Jenco filed a notice of appearance. Following a hearing on the motion on May 17, 2002, the trial court dismissed the case with prejudice. Jenco appeals.

ISSUES

1. Whether the trial court abused its discretion in granting United Fire’s motion to dismiss with prejudice.
2. Whether the trial court abused its discretion in denying Jenco’s motion for reconsideration.

STANDARD OF REVIEW

[¶ 7.] A trial court’s dismissal for failure to prosecute is reviewed under an abuse of discretion standard. Devitt v. Hayes, 1996 SD 71, ¶ 7, 551 N.W.2d 298, 300. “We will not reverse a decision if ‘we believe a judicial mind, in view of the law and the circumstances, could reasonably have reached that conclusion.’ ” Id. (quoting Rosen’s, Inc. v. Juhnke, 513 N.W.2d 575, 576 (S.D.1994) (additional citations omitted)).

[¶ 8.] 1. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN GRANTING UNITED FIRE’S MOTION TO DISMISS WITH PREJUDICE.

[¶ 9.] The trial court dismissed Jenco’s action under SDCL 15-11-11 and 15-6-41(b) with prejudice. SDCL 15-11-11 provides:

[t]he court may dismiss any civil case for want of prosecution upon written notice to counsel of record where the record reflects that there has been no activity for one year, unless good cause is shown to the contrary. The term “record,” for purposes of establishing good cause, shall include, but not by way of limitation, settlement negotiations between the parties or their counsel, formal or informal discovery proceedings, the exchange of any pleadings, and written evidence of agreements between the parties or counsel which justifiably result in delays in prosecution.

Generally, a dismissal under SDCL 15 — li-li is without prejudice to the right to bring the action again.

[¶ 10.] SDCL 15-6-41(b) allows a defendant to move to dismiss a case if the plaintiff fails to prosecute the case, comply with the Rules of Civil Procedure, or comply with any order of the court. SDCL 15-6-41(b) provides in part:

[f]or failure of the plaintiff to prosecute or to comply with this chapter or any order of court, a defendant may move for dismissal of an action or of any claim against him.... Unless the court in its order for dismissal otherwise specifies, a dismissal under this section and any dismissal not provided for in § 15-6-41, other than a dismissal for lack of jurisdiction, or for failure to join a party under § 15-6-19, operates as an adjudication upon the merits.

[¶ 11.] In this case, the trial court dismissed with prejudice under both SDCL 15-11-11 and SDCL 16-6-41(b). The trial court made the following findings in dismissing the case: (1) that no activity had occurred in the matter between September 1999 and March 2002, (2) that no settlement negotiations, no discovery, or exchange of pleadings, or any agreements between parties or counsel justified the delay, and (3) that the defendant was prejudiced by the disappearance of a key witness. The court determined that Jenco had not provided any evidence that would excuse the extended delay and that it could only attribute the delay to negligence or inattention. The court concluded that the plaintiffs inaction and delay were egregious.

[¶ 12.] Jenco attempts to excuse its delay claiming that at least 10 months of the delay was attributable to Judge Fitzgerald’s death. Jenco misses the point. In August 1999, Judge Fitzgerald ordered Jenco to obtain new counsel because its attorney had a conflict of interest as a potential witness. Jenco failed to comply, apparently, for two and one-half years. As the trial court noted in its memorandum decision, after the August 1999 order, Jen-co took no action until it filed a motion for a scheduling order on March 25, 2002, which motion was “apparently in response to a telephone conversation in which counsel for Defendant indicated that a motion to dismiss would be filed.” Substitute counsel for Jenco did not file a notice of appearance until May 2002.

[¶ 13.] In other words, there are two and one-half years of unexplained inactivity. There was no showing that Jenco was unable to obtain substitute counsel and no showing that Judge Fitzgerald’s death had any effect on the two and one-half year delay in obtaining counsel. In fact, there was no showing that Jenco even attempted to do anything whatsoever within that two and one-half year period.

[¶ 14.] Both Jenco and the dissent argue that the defendant was not prejudiced by the delay because the statute of limitations had not yet run. Jenco claims that the suit could have been brought as late as November 17, 2003. Regardless of whether the statute of limitations had run, Jenco has not shown that the trial court abused its discretion in granting the motion to dismiss.

[¶ 15.] First, the statute of limitations is only one factor among many to be considered. Even the authority cited by the dissent in support of this argument notes that “one of the factors a district court may consider” is whether the statute of limitations has run. Modrow v. JP Foodservice, Inc., 656 N.W.2d 389, 397 (Minn.2003) (emphasis supplied). Considerations of fundamental fairness dictate against raising the statute of limitations above other factors. For example, there are statutes of limitation in our Code which extend up to twenty years after filing. See e.g., SDCL 15-2-7 (fifteen year statute of limitation for action to foreclose real estate mortgages); SDCL 15-2-6 (twenty year statute of limitation for actions on state judgments and sealed instruments). The question then becomes why should a medical malpractice case be dismissed for want of prosecution after 2 years while an action on a sealed instrument may linger for up to 20 years? Compare SDCL 15-2-14.1 (statute of limitation for medical malpractice suit); SDCL 15-2-6 (statute of limitation for action on a sealed instrument). Trial courts must also consider other factors including prejudice to the defendant, lack of due diligence by the plaintiff, and judicial economy.

[¶ 16.] Second, the defendant was forced to cope with the expense and difficulties of an unresolved lawsuit for two and one-half years, while Jenco let the lawsuit languish. Therefore, the court could have found financial prejudice despite the fact that the statute of limitations had not yet run.

[¶ 17.] SDCL 15-11-11 allows the trial court to dismiss unless the plaintiff shows good cause for the delay. “Good cause for delay requires ‘contact with the opposing party and some form of excusable conduct or happening which arises other than by negligence or inattention to pleading deadlines.’ ” Dakota Cheese Inc. v. Taylor, 525 N.W.2d 713, 716 (S.D.1995) (quoting Holmoe v. Reuss, 403 N.W.2d 30, 32 (S.D.1987)). Our cases have found the following were insufficient evidence of good cause:

communication among a plaintiff and plaintiffs counsel, but not with opposing counsel, Holmoe, 403 N.W.2d at 32; letters and settlement activity between the parties two years prior to dismissal, Id; massive amount of documentation and investigation, Dakota Cheese, 525 N.W.2d at 716; plaintiffs failure to file a summons and complaint in circuit court fourteen months after being instructed to do so by the transferring small claims court, Devitt, 551 N.W.2d 298; the serious nature of injuries to plaintiff, Annett v. American Honda Motor Co., Inc., 548 N.W.2d 798, 804 (S.D.1996); difficulty in finding an expert witness and settlement activity which expired a year prior to dismissal, Id; and illness and death of defendants’ original counsel and further inaction by defendants’ counsel’s law firm, Reed v. Heath, 383 N.W.2d 873, 874 (S.D.1986).

Swenson v. Sanborn County Farmers Union Oil Co., 1999 SD 61, ¶ 16, 594 N.W.2d 339, 344. Jenco has failed to show good cause for its delay and therefore fails to show that the trial court abused its discretion by dismissing under SDCL 15-11-11 for failure to prosecute.

[¶ 18.] As we noted in Storm, a court order is not an “invitation, request or even [a] demand; they are mandatory. Those who totally ignore them ... should not be heard to complain that a sanction was too severe.” Storm v. Durr, 2003 SD 6, ¶ 17, 657 N.W.2d 34, 38 (quoting Schwartz v. Palachuk, 1999 SD 100, ¶ 23, 597 N.W.2d 442, 447). Jenco was expressly ordered to obtain new counsel and chose to disregard that order for thirty months. Plaintiff cannot be heard to complain now that the sanction was too harsh when compliance with the court’s order was completely within Jenco’s control. Jenco has not shown any reason for its failure to obtain substitute counsel nor has it shown that the trial court abused its discretion in dismissing with prejudice under SDCL 15-6^11(b) for failure to obey a court order.

[¶ 19.] Jenco has failed to show good cause for its unreasonable delay in this case. The trial court was faced with a thirty-month delay for which Jenco had little, if any, excuse, and the disappearance of a key witness. Plaintiff has not shown that the trial court abused its discretion in dismissing this ease with prejudice.

[¶ 20.] 2. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING JENCO’S MOTION FOR RECONSIDERATION.

[¶ 21.] Jenco also disputes that United Fire was prejudiced by the disappearance of a key witness and claims that the court abused its discretion by not reconsidering its finding of prejudice. Approximately one week after the court entered an Order of Dismissal, Jenco asked the court to reconsider based upon Jencos assertion that the witness was located in Sturgis, South Dakota. It was not until after the order of dismissal that Jenco claimed the witness lived in Sturgis and petitioned for reconsideration. The trial court would have been free to reject Jen-co’s contention that the witness was available because neither party ever actually contacted the witness.

[¶ 22.] Jenco argues that having allegedly found the witness, the court’s decision to dismiss was abuse of discretion because there was no showing of prejudice to the defendant. However, the court was not required to make a finding of prejudice in order to dismiss the action. SDCL 15-11-11 allows a court to dismiss an action for failure to prosecute when 1) there has been no activity for one year and 2) there is no showing of good cause which excuses the inactivity. Swenson, 1999 SD 61, ¶ 13, 594 N.W.2d at 343. In evaluating a motion to dismiss under SDCL 55-11-11 or SDCL 15-6-41(b), prejudice by lack of activity is not necessary. See Swenson, 1999 SD 61, ¶¶ 14-15, 594 N.W.2d at 343-44 (citations omitted). Plaintiff has not shown that the trial court abused its discretion in denying the motion for reconsideration.

[¶ 23.] GILBERTSON, Chief Justice, and LIEBERMAN, Circuit Judge, concur.

[¶ 24.] KONENKAMPand MEIERHENRY, Justices, dissent.

[¶ 25.] LIEBERMAN, Circuit Judge, sitting for ZINTER, Justice, disqualified.

MEIERHENRY, Justice

(dissenting).

[¶ 26.] I respectfully dissent.

[¶ 27.] Dismissal with prejudice when the statute of limitations has not run is too harsh under the circumstances of this case. The trial court specifically based its decision to dismiss on three factors: (1) the lack of activity for two and one-half years, (2) no justification for the delay such as settlement negotiations, discovery or agreements, and (3) prejudice to United Fire because of the disappearance of a witness. United Fire did not claim it was financially prejudiced nor did the trial court make a finding of financial prejudice. Neither did the trial court in any way indicate that it was dismissing this case because of judicial economy. Further, the trial court did not dismiss because the plaintiff failed to obey a court order requiring substitute counsel. Since the trial court did not base its decision on financial prejudice, judicial economy or failure to follow a court order; this Court should not rely on them to justify the dismissal.

[¶ 28.] This Court has repeatedly stated that “mere passage of time” is not the test to determine if an action should be dismissed. Swenson v. Sanborn Co. Farmers Union Oil Co., 1999 SD 61 ¶ 17, 594 N.W.2d 339, 344; London v. Adams, 1998 SD 41, ¶ 12, 578 N.W.2d 145, 148; Opp v. Nieuwsma, 458 N.W.2d 352, 356 (S.D.1990); Holmoe v. Reuss, 403 N.W.2d 30, 31 (S.D.1987). Mere passage of time, however, appears to be the basis of this dismissal. Although the plaintiff did not present an excuse for the delay, completely closing the door to the claim does not comport to this Court’s goal of doing justice. I would, instead, adopt an approach similar to one the courts of Minnesota have taken to consider the statute of limitations in relationship to the reasonableness of delay. The Minnesota Supreme Court uses a two pronged test in evaluating dismissals for failure to prosecute under its equivalent 41(b) rule. “Before an action should be dismissed for failure to prosecute, it must be shown: (1) that the delay prejudiced the defendant, and (2) that the delay was unreasonable and inexcusable.” Modrow, 656 N.W.2d at 394 (citing Scherer v. Hanson, 270 N.W.2d 23, 24 (Minn.1978)). One of the factors in determining reasonableness of delay is whether the delay is shorter than the time period of the statute of limitations for bringing the action.

We also note that one of the factors a district court may consider in evaluating the reasonableness of any delay is whether the delay is shorter than the time period the statute of limitations provides for asserting the plaintiffs cause of action. It is difficult to conclude that a delay is unreasonably long when it is less than the length of time the legislature provides for a plaintiff to commence her cause of action.... It appears inconsistent to dismiss an action because of prefiling delay when the action included claims that may not be time-barred, especially when the dismissal is with prejudice and not on the merits. Such a dismissal is certainly contrary to the ‘primary objective’ of disposing of claims on their merits.

Id. at 397.

[¶ 29.] This Court has said many times that cases should ordinarily be decided on the merits. Upper Plains Contracting Inc. v. Pepsi Americas, 2003 SD 3, ¶ 22, 656 N.W.2d 323, 330; Roso v. Henning, 1997 SD 82, ¶ 12, 566 N.W.2d 136, 141; International Union of Operating Engineers Local No. 19 v. Aberdeen School Dist. No. 6-1, 463 N.W.2d 843, 844 (S.D.1990). There were other sanctions less harsh which the court could have imposed to move the trial forward short of dismissal with prejudice. The court could have imposed sanctions, set the matter for trial, or any other number of requirements to get the case moving on the court’s docket or the court could have simply dismissed without prejudice.

[¶ 30.] For the reasons above I would reverse.

[¶ 31.] KONENKAMP, Justice, joins this dissent.

      . The record does reflect a short delay caused by reassignment of judges. A hearing was scheduled before Judge Delaney for April 15, 2002, however, all judges of the seventh circuit disqualified themselves and Judge Bas-tían was appointed to preside over the case on May 2, 2002. Regardless, this approximate two week delay does little to account for the extended period of inactivity in this case.

      . The dissent asserts that the trial court "did not dismiss because the plaintiff failed to obey a court order requiring substitute counsel.” However, in support of its memorandum decision and its order dismissing with prejudice, the court found that 1) the original trial court had agreed there was a conflict of interest; 2) alternate counsel was to be retained; and 3) plaintiff did not retain alternate counsel until March 2002.

      . The dissent asserts that the trial court could have chosen a less severe sanction. However, under an abuse of discretion standard, "it is not for us to determine whether we would have made a like ruling, but whether a judicial mind in view of the law under the circumstances could reasonably have reached such a conclusion.” Sowards v. Hills Materials, Co., 521 N.W.2d 649, 652 (S.D.1994).

      . In Simpson v. C & R Supply, Inc., we affirmed the trial court’s refusal to dismiss under SDCL 15-11-11. The trial court noted that the statute of limitations had not run. Justice Konenkamp notes in his writing that the trial court had legitimate reasons not to dismiss one of which was that the statute of limitations had not run. 1999 SD 117, ¶ 12, 598 N.W.2d 914, 918-19.

      . Minnesota Rules of Civil Procedure 41.02(a) provides that the trial court may “upon its own initiative, or upon motion of a party, and upon such notice as it may prescribe, dismiss an action or claim for failure to prosecute or to comply with these rules or any order of the court.” Modrow v. JP Foodservice, Inc., 656 N.W.2d 389, 393-394 (Minn.2003).


author: LAVORATO, Chief Justice.

text:
    Cherri Lea VOS, Rita C. Anderson and Quentin V. Anderson, on Behalf of Themselves and All Others Similarly Situated, Appellants, v. FARM BUREAU LIFE INSURANCE COMPANY and FBL Financial Group, Inc., Appellees.
    No. 01-1025.
    Supreme Court of Iowa.
    July 16, 2003.

      Marc A. Humphrey of Humphrey Law Firm, P.C., Des Moines, Angela M. Trom-bly of Law Offices of Angela M. Trombly, East Longmeadow, Mass., Richard A. Lockridge and Katheryn A. Andresen of Loekridge, Grindal, Ñauen, P.L.L.P., Minneapolis, Minn., William R. Weinstein, Richard Bemporad, and Vincent Briganti of Lowey, Dannenberg, Bemporad & Sel-inger, P.C., White Plains, N.Y., and Julian K. Melmed of Law Offices of Julian K. Melmed, Stamford, Conn., for appellants.
    CeCelia Ibson Wagner and Janean A. Schaefer Denhart of Smith, Schneider, Stiles & Serangeli, P.C., Des Moines, for appellees.
   LAVORATO, Chief Justice.

The plaintiffs, Cherri Lea Vos, Rita C. Anderson, and Quentin V. Anderson, appeal a district court ruling decertifying their class action against Farm Bureau Life Insurance Company and FBL Financial Group, Inc. (collectively “Farm Bureau”). Because we find no abuse of discretion in the court’s ruling, we affirm.

I. Background.

A. The allegations. On February 1, 1999, Vos and her parents, the Andersons, filed a class action against Farm Bureau. The plaintiffs alleged that from January 1, 1982 through at least December 31, 1996, Farm Bureau engaged in a pattern of deceptive practices in connection with the sale of whole life and universal life polices. The deceptive conduct as alleged in the petition involved:

(a) Selling whole and universal life insurance policies under the pretense of “vanishing premiums” and/or “fully paid up” policies. Farm Bureau promised its existing policyowners and new customers that, on a given policy, they would not have to make additional premium payments after a specified number or amount of payments or years (“vanishing premiums”); and
(b) Strongly urging policyowners to surrender, borrow, or withdraw cash values from their existing policies to fund an additional policy, or an entirely new Farm Bureau policy which replaced the existing policy, usually with the added incentive that premiums on the second “fully paid up” policy would be paid substantially or entirely from the value of the first policy and at no additional cost to the policyowner (“replacement of policies with vanishing premiums”).

The petition further alleged the following additional facts. On May 17, 1988, Farm Bureau agent Merrill Perry met with plaintiffs at their home to “induce them into purchasing an additional ‘fully paid up’ life insurance policy” for Cherri Vos. Perry used policy illustrations and calculations provided by Farm Bureau to represent to the plaintiffs this “great deal” would allow them to obtain a fully paid up $50,000 special whole life policy on Cherri without making further premium payments on the policy. Perry convinced Rita to cash in a $2,000 paid up life insurance policy she owned through another insurance company and apply the proceeds to the policy for Cherri. In addition, Perry persuaded Quentin to write a check in payment of the additional amount necessary to make the new policy “fully paid up.” In December 1998, Farm Bureau offered to recognize Cherri’s policy as “fully paid up,” provided she agree to accept a reduced paid up policy in the amount of $20,710.50.

The petition alleged the following common questions of law and fact predominated over individual questions:

(1) Whether Farm Bureau, through its national general agency system and sales force of agents, engaged in deceptive acts and practices in connection with the sale of whole life and/or universal life insurance policies; and
(2) Whether Farm Bureau, through its national general agency system and sales force of agents, breached its contracts with plaintiffs and the members of the class during the class period by requiring additional out-of-pocket payments on whole and/or universal life insurance policies purchased by plaintiffs and members of the class beyond the amounts or dates represented.

The petition asserted five separate claims against the defendants: breach of contract, negligent misrepresentation, common law fraud, fraudulent inducement, and breach of fiduciary duty. The defendants answered and asserted several affirmative defenses. One of those affirmative defenses is relevant to this appeal: There are no common questions of law or fact which predominate over any questions affecting only individual members.

B. Proceedings related to class action certification. On July 15, 1999, the plaintiffs filed a motion for class certification and a memorandum of law in support of that motion, which Farm Bureau resisted. In its memorandum of law the plaintiffs asserted that the defendants engaged in a uniform and common course of unfair and deceptive conduct that was substantially similar with respect to each member of the proposed class. According to the plaintiffs,

[T]he deceptive acts and practices challenged by plaintiffs are based on uniform sales practices whereby Farm Bureau failed to inform existing policy-owners and new customers of the substantial risks associated with these insurance policies, i.e., that the only way in which premiums would “vanish,” or would not have to be paid on the additional or new policies, was if interest rates and/or dividend scales remained relatively constant. Defendants also failed to inform their policyowners and new customers, inter alia, that if the interest rates and/or dividend scales declined, by even a fraction of a percent from that used as the basis for the agents’ representations and inducements, then the specified number or amount of payments and/or the dividends and/or interest on the policies would be wholly insufficient to pay for the additional premiums and/or “fully pay up” the policies, and policyowners would have to pay the difference out-of-pocket.

Following a hearing in which the district court heard arguments on the motion, the court granted the plaintiffs’ motion for class certification on February 14, 2000. In ruling on the motion, the court considered the petition and some thirty exhibits attached to the plaintiffs’ memorandum. In its ruling, the court noted that “the class certification order is always subject to modification should later developments during the course of the trial so require.” The district court defined the class as follows:

All persons who have or had an ownership interest in one or more whole life and/or universal life policies issued during the period of January 1, 1982 through December 31, 1996 (the “class period”) that was sold by Farm Bureau through its exclusive agency force, and to whom it was represented that premiums would “vanish” and/or that a policy would be “fully paid up” and/or that no additional costs would be incurred in excess of the specified number or amount of payments or years. Excluded from the class are defendants, any parent, subsidiary or affiliate of defendants, any entity in which defendants have a controlling interest, and the officers, directors, agents, employees, legal representatives, heirs, predecessors, successors, and assigns of such excluded person or entity.

C. Discovery. Discovery commenced in June 1999 and continued for nearly two years during which Farm Bureau produced over 60,000 pages of documents and the plaintiffs produced over 100 documents. The plaintiffs as well as several of Farm Bureau’s present and former employees and senior management officials were deposed. The documentation Farm Bureau produced included sample life insurance contracts, sample illustrations used by Farm Bureau agents, minutes of board of directors’ meetings concerning interest rates and dividend declarations, brochures and promotional materials, training manuals, rate manuals, complaint files, Farm Bureau’s SEC Prospectus regarding its public offering, actuarial material regarding the policies in question, organizational charts, and affidavits. The documentation the plaintiffs produced included the plaintiffs’ life insurance policies and attendant documents, copies of checks regarding premium payments, and documents regarding the plaintiffs’ consumer complaint.

The discovery reveals the following information about the type of policy at issue and the marketing scheme Farm Bureau used to sell it.

1. The policies. The plaintiffs purchased identical policies from Farm Bureau: “Special Whole Life Participating.” Quentin and Rita Anderson purchased their policies in 1985. The allegations of the petition are limited to the facts surrounding the purchase of Cherri’s policy, which was purchased in 1988. Therefore the facts surrounding the purchase of Rita’s and Quentin’s policy are relevant only to the extent they are included as class members.

The front page of the policy contained the following:

SPECIAL WHOLE LIFE POLICY
PARTICIPATING
Payable at Death.
Level Premiums Payable for Life.
Annual Dividends.
RIGHT TO CANCEL
The owner may cancel this policy by ... returning the policy or contract before midnight of the twentieth day after the date you receive the policy.... Farm Bureau Life will refund any premium paid for this policy within ten days after it receives notice of cancellation and the returned policy.

(Emphasis added.)

The top of the table-of-contents page informed the policyholder, “This policy is a legal contract between the policy owner and the Farm Bureau Life Insurance Company. READ YOUR POLICY CAREFULLY.”

The “Policy Data Sheet” is found at page three of the policy. It lists the “annual premium” and states that the “period payable” is “lifetime.” The policy data sheet also lists the guaranteed cash value and paid-up insurance the policy will generate or carry at any given point in time.

The policy contained the following provisions related to premiums and dividends, and the following general provisions:

PREMIUM PROVISIONS
Premium Payment. Premiums are to be paid for the term shown on page 8 [Policy Data Sheet], The amount and frequency of premium payments are also shown on page 3.
DIVIDENDS PROVISIONS
Dividend Participation. As long as this policy is in force, except as extended term insurance, it will share in the company’s surplus as set by the company each year. The share will be paid as a dividend at the end of each policy year. However, no dividend will be paid until the second policy year.
Dividend Options. The owner has the following dividend options:
1) Cash- — Dividends will be paid in cash.
2) Premium Reduction- — Dividends will be used to help pay premiums. Any balance will be paid in cash.
3) Accumulations- — Dividends will be left with us to earn interest. We will set the interest rate, but it will not be less than 3% per year.
4) Paid-Up Additions — Dividends will be applied to buy paid-up additional insurance. The insurance will be of the same type as this policy. Paid-up additions will also share in the company’s surplus.
The owner may choose a dividend option on the application of this policy or by a later written request to us. If a dividend option has not been chosen, dividends will be applied under the paid-up additions option.
GENERAL PROVISIONS
Contract. This policy is issued in consideration of the first premium and the statements in the application. This policy, and the attached application and all other attached papers, if any, which by this reference are made a part of this policy, form the entire contract. All statements in the application are deemed representations and not warranties except in the case of fraud. No statement will void this policy or be used in defense of a claim unless contained in the application.
Modification. No one can change any part of this policy except the owner and one of our officers. Both must agree to a change, and it must be in writing. No agent may change this policy or waive any of its provisions.

Farm Bureau issued a “Premium Deposit Agreement” to each plaintiff in 1988. Such an agreement is issued to each policyholder upon receipt of a sum of money that represents a number of annual premiums on a life insurance policy. The agreements the plaintiffs received acknowledge the receipt by Farm Bureau of a sum of money representing a number of annual premiums on their policies. The agreements explain, “This deposit will be used in prepayment on the above policy of the annual premiums specified above.” The agreements indicate four annual premiums prepaid for Quentin, three for Rita, and nine for Cherri.

2. Marketing the policies. Farm Bureau markets its life insurance products through an exclusive agency force. Its agents are independent contractors and exclusive agents of Farm Bureau. This is in contrast to other insurance agents, who may sell insurance products of several different companies.

Farm Bureau provided its agents with software to create illustrations during sales presentations to clients. Before 1988, Farm Bureau agents produced illustrations by inputing information into a hand-held computer. The computer generated a piece of paper resembling an adding machine tape. When interest rates changed, agents would receive a new chip to insert into the hand-held computer. The chip was programmed with the then-current declared interest rate to be used by Farm Bureau agents in calculating dividends.

After 1988, agents used laptop computers and received floppy disks when interest rates changed. An agent could not prepare an illustration using an interest rate higher than that which the board of directors had declared as that period’s rate for use in calculating dividends. Agents could not input an interest rate. The interest rate was hard-coded in the chip (and later the software).

Agents could present one of five illustration options for Special Whole Life insurance: (1) dividend to reduce premium, (2) dividends to buy paid-up additions, (3) dividend to accumulate with interest, (4) limited pay concept, and (5) rated policy. All illustrations contained the following language:

This illustration is based on the company’s current dividend scale which is sensitive to changing interest rates. Dividends are neither guaranteed nor estimated for the future.

Steven Knutzen, a Farm Bureau employee who trained Farm Bureau agents, explained in an affidavit that

the illustration system was capable of calculating how many advance premiums would need to be paid on a policy to get it to the point where, at the then-current interest rates, it would generate dividends at such a level that the dividends would pay premiums from that point into the future....
We explained to agents, and we expected and trained them to explain to clients, that just because no cash premium payments were being made [in the hypothetical being presented] that it did not mean premiums were not being paid. Premiums still came due, but they were paid out of the cash value of the paid-up additions (dividends). The client knew this every year, because every year the client would receive a form which he/she was required to sign before Farm Bureau was allowed to withdraw any monies from the dividend fund to pay the annual premium.

According to Knutzen, the Universal Life illustration system allowed an agent to run three separate illustrations using three different interest rates: the then-current rate (12%), the guaranteed rate (4.5%), and a rate midpoint between the guaranteed rate and the then-current rate (9%). Agents were trained to project all three rates, because everyone knew the then-current rate was not going to continue. Farm Bureau wanted their agents to be realistic with their clients in terms of how these policies could .reasonably be expected to perform. Agents were also trained to communicate to their clients that the illustrations were projections based on the current dividend scale, that dividends were not guaranteed and that the interest rate used to calculate them was not guaranteed. Agents were instructed to leave illustrations with prospective clients after discussing them. Farm Bureau, however, did not require its agents to use illustrations or other materials it provided for use in sales presentations.

3. Dividends/interest rate declarations. Farm Bureau declares dividends each year. Dividends are a function of three factors: a gain from interest, a gain from mortality, and a gain .from expenses. Dividends are a distribution of the gain that the company has experienced because actual performance turns out better than the pricing assumptions. Even if the rate does not change from one year to the next, the rate must be redeclared by the board of directors.

Farm Bureau’s policies state, “[a]s long as this policy is in force, ... it will share in the Company’s surplus as set by the company each year.” Special Whole Life policies do not earn dividends, if any, until the second full year of the policy.

Dividend interest rates declared by Farm Bureau’s board of directors rose from 9 percent to 10.5 percent in 1984, to 12 percent in 1985, then declined to 11 percent in 1986 and 9 percent in 1987. Rates remained at 9 percent until 1992. The first credited dividends for policies issued in 1981 or 1982 were at rates higher than rates illustrated by the company. In contrast, the first credited dividends for policies issued in 1985 and 1986 were significantly lower.

D. Proceedings related to class action decertification. On February 26, 2001, Farm Bureau filed a motion to decer-tify the class. The sole ground urged in the motion was that “the individual questions and issues will always predominate over the common.” Following a hearing on the motion, the district court granted the motion to decertify. In its ruling, the court concluded:

[F]or each cause of action forwarded by plaintiffs, ... individual questions of law and fact predominate common questions .... [A]fter nearly a full year of discovery, plaintiffs cannot direct this court to any piece of evidence to support their theory of uniform deception.... [T]he individual facts behind each claim [are] more case specific than common.

The plaintiffs appealed from this ruling.

We set out additional information as that information relates to the issues raised in this appeal.

II. Issues.

The plaintiffs contend the district court abused its discretion in decertifying the class action in light of substantial evidence that common issues of law and fact predominate. Whether the district court abused its discretion as the plaintiffs contend turns on our determination whether common questions of law or fact predominate over any questions affecting only individual class members.

III. Scope of Review. Our review of the district court’s ruling granting or denying certification of a class action is limited because the district court enjoys broad discretion in the certification of class action lawsuits. Stone v. Pirelli Armstrong Tire Corp., 497 N.W.2d 843, 845 (Iowa 1993). We will reverse an order granting or denying certification only if we find the district court’s decision was based upon an abuse of discretion. Varner v. Schwan’s Sales Enters., Inc., 433 N.W.2d 304, 305 (Iowa 1988). We find such an abuse of discretion only where the district court’s grounds were clearly unreasonable. Id.

The same broad discretion exists in determining whether to decertify a class. 5 James Wm. Moore et al., Moore’s Federal Practice § 23.04, at 23-28 to 23-29 (3d ed.2002) (citing In re Int’l House of Pancakes Franchise Litig., 536 F.2d 261, 263 (8th Cir.1976)). See also Iowa R. Civ P. 1.265(1) (providing that in amending the certification order, the court may (1) establish subclasses, (2) eliminate from the class any class member who was included in the class as certified, (3) provide for an adjudication limited to certain claims or issues, (4) change the relief sought, or (5) make any other appropriate change in the order).

IV. Applicable Law.

Iowa Rules of Civil Procedure 1.261 to 1.263, the rules regarding class actions, closely resemble Federal Rule of Civil Procedure 23. Compare, e.g., Fed.R.Civ.P. 23(b)(3), with Iowa R. Civ. P. 1.263(e), (⅞)-(⅞). Therefore, we may rely on federal authorities construing similar provisions of Federal Rule of Civil Procedure 23. Vignaroli v. Blue Cross of Iowa, 360 N.W.2d 741, 743 (Iowa 1985).

Iowa Rule of Civil Procedure 1.261 permits the commencement of a class action if there is a question of law or fact common to a class of persons so numerous that joinder of all persons is impracticable. Iowa R. Civ. P. 1.261. The district court may certify an action as a class action if it finds:

a. The requirements of rule 1.261 [nu-merosity and commonality] have been satisfied.
b. A class action should be permitted for the fair and efficient adjudication of the controversy.
c. The representative parties fairly and adequately will protect the interests of the class.

Iowa R. Civ. P. 1.262(2).

The plaintiff has the burden of establishing that a purported class of plaintiffs meets the prerequisites. Vignaroli, 360 N.W.2d at 744. A failure of proof on any one of the prerequisites is fatal to class certification. City of Dubuque v. Iowa Trust, 519 N.W.2d 786, 791 (Iowa 1994).

Rule 1.263(1) sets forth a number of criteria the district court should consider in determining whether the prerequisite of rule 1.262(2)(5) (the class action should be permitted for the fair and efficient adjudication of the controversy) has been met. The criteria center on two broad considerations: “achieving judicial economy by encouraging class litigation while preserving, as much as possible, the rights of litigants' — -both those presently in court and those who are only potential litigants.” Vignaroli, 360 N.W.2d at 744. The rule does not require the district court to assign weight to any of the criteria listed, “further evidencing an intent to grant considerable discretion to the trial court.” Id. Nor does the rule require the court to make written findings as to each factor under rule 1.263(1). City of Dubuque, 519 N.W.2d at 793. Rather the rule merely requires the court to weigh and consider the factors and come to a reasoned conclusion as to whether a class action should be permitted for a fair adjudication of the controversy. Id.

One of the criteria in rule 1.263(1) is that “common questions of law or fact predominate over any questions affecting only individual members.” Iowa R. Civ. P. 1.263(l)(e). It is this criterion that is primarily at issue in this case. Inherent in the court’s inquiry into this issue

is the recognition [that] the class action device is appropriate only where class members have common complaints that can be presented by designated representatives in the unified proceeding. The question as to whether common issues of fact or law predominate over those affecting only individuals is a fairly complex one.

Vignaroli, 360 N.W.2d at 744.

The individual claims need not be carbon copies of each other. Id. at 745. If a “common nucleus of operative facts” is present, a class action can be brought even without a “complete identity of facts relating to all class members.” Id. (quoting 7A C. Wright & A. Miller, Federal Practice and Procedure § 1778, at 53-54 (1972)). “ ‘Predominate’ should not be automatically equated with ‘determinative’ or ‘significant.’ ” Id. “A claim will meet the predominance requirement when there exists generalized evidence which proves or disproves an element on a simultaneous, class-wide basis, since such proof obviates the need to examine each class member’s individual position.” Cope v. Metro. Life Ins. Co., 82 Ohio St.3d 426, 696 N.E.2d 1001, 1004 (1998) (citation omitted).

Certification of a class action does not depend on a determination of whether the plaintiffs will ultimately prevail on the merits. Vignaroli, 360 N.W.2d at 745. Rather, it depends on whether or not the requirements of the rule governing class actions are met. Id. “The appropriate inquiry is not the strength of each class member’s personal claim, but rather, whether they, as a class, have common complaints.” Martin v. Amana Refrigeration, Inc., 435 N.W.2d 364, 367 (Iowa 1989). For this reason, the court does not conduct a preliminary inquiry into the merits of a suit in a certification hearing. Id. However, “that is not to say that the court may not require sufficient information to form a reasonable judgment in deciding whether to certify a class action.” Id. at 367-68; see also Cohn v. Mass. Mut. Life Ins. Co., 189 F.R.D. 209, 212 (D.Conn. 1999) (“Because ‘the class determination generally involves considerations that are enmeshed in the factual and legal issues comprising the plaintiffs cause of action,’ the Rule 23 analysis often requires the court ‘to probe behind the pleadings before coming to rest on the certification question.’ ” (Citations omitted.)); In re Jackson Nat’l Life Ins. Co. Premium Litig., 183 F.R.D. 217, 219 (W.D.Mich.1998) (“Maintainability may be determined by the court on the basis of the pleadings, if sufficient facts are set forth, but ordinarily the determination should be predicated on more information than the pleadings will provide.” (Citation omitted.)); Kramersmeier v. R.G. Dickinson & Co., 440 N.W.2d 873, 877 (Iowa 1989) (“[A] preliminary inquiry into the legal and factual sufficiency of the plaintiffs’ claim is appropriate inasmuch as they seek to represent the interests of the entire class.”)

In particular, the question of predominance necessitates a “close look” at “the difficulties likely to be encountered in the management of a class action.” Rothwell v. Chubb Life Ins. Co. of Am., 191 F.R.D. 25, 28-29 (D.N.H.1998) (quoting Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 614-17, 117 S.Ct. 2231, 2246, 138 L.Ed.2d 689, 707-09 (1997)). Moreover, “[t]he duty of the trial court to ensure compliance with Rule 23(a) continues after certification of the class, and the court may decertify the class after the initial certification if appropriate.” In re Hartford Sales Practices Litig., 192 F.R.D. 592, 602 (D.Minn.1999). See also Roby v. St. Louis Southwestern Ry., 775 F.2d 959, 963 (8th Cir.1985) (holding that district court did not abuse its discretion in decertifying class following trial on the merits).

Y. Class Certification of “Vanishing Premium” Cases, Generally.

Federal courts have addressed the issue of class certification in “vanishing premium” .cases over the past several years. An examination of these cases and the general trend in the federal (and, to a certain extent, state) courts give us a general framework from which to begin our analysis of the issue before us.

A “vanishing premium” policy

is one where, after a certain number of premium payments, the policy itself generates sufficient income through dividends and interest to pay any additional premiums due. In other words, premiums paid in the initial years of a policy are supposed to generate sufficient value to pay all future premiums due in later years, so that future premiums, in essence, “vanish.” The assumption that premiums will “vanish” depends on, among other factors, mortality experience, expenses, dividends, and associated interest rates. A change in any of these variables can affect the date by which premiums will “vanish.”

Parkhill v. Minn. Mut. Life Ins. Co., 188 F.R.D. 332, 335 n. 2 (D.Minn.1999). These types of policies became popular in the early 1980s, when interest rates hit record highs. See generally Daniel R. Fischel and Robert S. Stillman, The Law and Economics of Vanishing Premium Life Insur ance, 22 Del. J. Corp. L. 1, 3-8 (1997) (explaining the economics of the vanishing premium problem).

As one writer indicates, plaintiffs have generally been unsuccessful in certification motions involving vanishing premium cases based primarily on the issue of predominance of common issues to individual ones. See generally James R. Carroll, Recent Developments in “Vanishing Premium,” SF81 ALI-ABA 1 (2001) (collecting cases) [hereinafter “Carroll”]. Carroll cites three cases that “have established a body of precedent that is almost always followed in the adjudication of motions to certify class actions.” Id. at 2. They include Cohn, 189 F.R.D. at 211, 218 (class certification denied as to claims for breach of contract, negligence, fraud, negligent misrepresentation, unjust enrichment and violations of the Connecticut unfair trade practices statute); Parkhill, 188 F.R.D. at 340-45 (class certification denied as to claims for breach of contract and violations of Minnesota consumer protection statutes); and Jackson National, 183 F.R.D. at 219, 220-23 (class action certification denied as to claims for fraud, negligent supervision, breach of contract, unjust enrichment and statutory violations). In each of these cases the court found that the claims all required case-specific individualized showings of the alleged misrepresentations of the agent and the alleged reasonable reliance of the policyholder. See Cohn, 189 F.R.D. at 218; Parkhill, 188 F.R.D. at 342-45; Jackson Nat’l, 183 F.R.D. at 220-23.

In Cohn, the plaintiffs asserted the predominance requirement was met because

the written illustrations produced by Connecticut Mutual and distributed to the company’s network of agents, or printed by the agents themselves using software provided by the company, were identical in all material respects in each of the transactions at issue.... [A]s a result of Connecticut Mutual’s centralized training program, the sales presentations used by the sales people in each transaction were uniformly misleading. The evidence concerning these allegedly uniform illustrations and sales presentations, the underlying training programs, and the state of mind of Connecticut Mutual in orchestrating the alleged scheme, and the legal determinations that will be based on this body of evidence, ... constitute the core of the controversy regarding each class member.

Cohn, 189 F.R.D. at 212.

Rejecting the contention that the predominance requirement was met, the court concluded:

[T]he predominance requirement is not satisfied. Though there are issues common to the members of the proposed class, including in particular the actions and state of mind of Connecticut Mutual in pursuing the vanishing premium marketing strategy, these common questions are overshadowed by individualized issues such as the nature of the oral representations or disclosures made by the agent or broker at the point of sale, the nature of any questions asked by the consumer, the content of any written illustrations or disclosures given to the consumer, the degree of care exercised by the consumer in reviewing any written illustrations and the policy instrument, the portions of the offer that were attractive to the consumer, the degree of the consumer’s financial sophistication and his or her understanding of the product. These individualized issues, which are essential to the determination of the claims of each class member, predominate over questions common to the class.

Id. at 218.

In Jackson National, ■ the court noted the following relevant facts:

Jackson National did not generally communicate directly with prospective consumers or policyholders. Communications were made primarily by independent insurance brokers; brokers who were not subject to and did not follow uniform policies regarding distribution of policy illustrations....
Neither were brokers required to follow uniform sales scripts.... [T]his freedom led to great variance in representations made by brokers; some explaining away and others even exacerbating any misleading tendencies the policy illustrations may have had.

Jackson Nat’l, 183 F.R.D. at 221. The court concluded that a “determination of whether and which illustrations were given to class members, and of the nature of oral representations made to them at the point of sale, ... are matters requiring individualized fact development.” Id. In addition, “the materiality of the allegedly misleading illustrations and plaintiffs’ reliance on them” were “fact issues requiring individualized treatment.” Id.

Other federal courts have reached similar conclusions. See, e.g., In re LifeUSA Holding Inc., 242 F.3d 136, 145-48 (3d Cir.2001) (class certified by district court based on pre-sale actions of LifeUSA was an abuse of discretion because commonality, predominance, and superiority requirements were not met); Keyes v. Guardian Life Ins. of Am., 194 F.R.D. 253, 257 (S.D.Miss.2000) (class certification of action alleging fraud in the sale of “vanishing premium” policies denied because facts did not support finding “that defendant’s policies were sold in a sufficiently uniform manner so as to justify a finding that common issues predominate”); Rothwell, 191 F.R.D. at 30-31 (motion to certify “vanishing premium” subclass denied where “even if plaintiffs were able to prove at trial that Chubb trained its agents to use the policy illustrations in a misleading manner, it still would not eliminate the need for a ‘mini-trial’ on each class member’s claim to determine the nature of the representations that were made in that case” and resolution of fraud-based claims would require proof “both that Chubb’s agents made misrepresentations and that the individual class members reasonably relied on those representations in purchasing their insurance policies”).

Against this backdrop, we proceed to our analysis and our determination of the merits.

VI. Analysis.

We first address the plaintiffs’ contention that the district court “imper-missibly made factual determinations concerning the conflicting evidence presented by plaintiffs and defendants in connection with the decertification proceedings.” We note the district court conceded that it could not inquire into the merits of the case in determining whether to grant certification. However, we agree with the district court this principle is not absolute. In reaching a decision on a motion for class certification, the court is not limited to a review of the pleadings. To the contrary, where the issues are not

plain enough from the pleadings to determine whether the interests of the absent parties are fairly encompassed within the named plaintiffs claim ... it may be necessary for the court to probe behind the pleadings before coming to rest on the certification question. Even after a certification order is entered, the judge remains free to modify it in light of subsequent developments in the litigation.

Gen. Tel. Co. of S.W. v. Falcon, 457 U.S. 147, 160, 102 S.Ct. 2364, 2372, 72 L.Ed.2d 740, 752 (1982) (emphasis added).

Given the vast amount of documents produced following the certification order and the depositions taken, we think it was proper for the district court to probe behind the pleadings on the issue of predominance. We conclude therefore that rather than making impermissible findings on the merits the district court simply examined the vast amount of evidence that was available to determine this issue.

Certain evidence surrounding plaintiffs’ purchase of insurance from Farm Bureau supports the district court’s conclusion that plaintiffs’ allegations remained merely speculative after many months of discovery. For example, the district court pointed to the fact that the plaintiffs could not recall their agent ever showing them an illustration in connection with the life insurance sale. As the district court explained, this fact undermines the plaintiffs’ allegation that “the inflated and unrealistic performance models (based on ‘teaser’ interest rates) employed within the policy illustrations reveal company-wide deception.” Moreover, the court noted that the plaintiffs produced no evidence that the agents uniformly employed said illustrations. As the district court noted, without proof of uniform deception, individual questions of fact and law predominate the common. Additionally, the record shows that Rita cashed in her $2,000 life insurance policy four years before she claimed Merrill Perry had persuaded her to do so.

A. Breach of contract. As to this claim, the district court concluded individual questions of fact and law predominate the questions common to the class:

As to plaintiffs’ claim for breach of contract (Count II), because there is no evidence of company wide deception or that the agents uniformly employed the illustrations in the sales calls, the issue of whether the illustrations became part of the insurance contract becomes a question individualized for each putative plaintiff.

The plaintiffs contend that this ruling is incorrect because the plaintiffs’ breach of contract claim is predicated neither on the existence of “company wide deception” nor the use of “illustrations in sales calls [or] whether the illustrations become part of the insurance contract.” Rather, the plaintiffs contend, their breach of contract claim is based solely on the issue of whether the defendants knowingly created the “reasonable expectation” in connection with the policies purchased by the plaintiffs and the class that premiums would “vanish” and/or the policy would be “fully paid up” and/or that no additional costs would be incurred in excess of the specified number or amount of payments or years. The plaintiffs complain that although they discussed their reasonable expectations theory in their resistance to the defendants’ motion to decertify the class, the district court failed to discuss it.

Farm Bureau counters by noting that from the beginning the plaintiffs have focused on the common course of deception pursued by Farm Bureau against all policyholders rather than on the expectations of the policyholders themselves. The reasonable expectations theory, Farm Bureau asserts, was first raised in the plaintiffs’ resistance to the motion to decertify. (Actually the record shows the plaintiffs first raised the issue in its reply to Farm Bureau’s resistance to the plaintiffs’ motion to certify.)

According to Farm Bureau, the shift in theory resulted because the plaintiffs were forced to create some sort of argument in support of their breach of contract claims, particularly after the district court expressed at the first hearing reservations about whether claims which incorporated the illustrations — all of which bore written disclaimers — could really support a finding against Farm Bureau.

Additionally, Farm Bureau contends the doctrine of reasonable expectations simply does not apply in this case.

We too have serious doubt that the doctrine of reasonable expectations applies in these circumstances. We have applied the doctrine to insurance coverage cases

to avoid the frustration of an insured’s expectations notwithstanding policy language that appears to negate coverage. It is a narrow doctrine that is primarily employed when the insurance coverage provided eviscerates terms explicitly agreed to or is manifestly inconsistent with the purpose of the transaction for which the insurance was purchased.

Monroe County v. Int’l Ins. Co., 609 N.W.2d 522, 526 (Iowa 2000) (emphasis added).

The doctrine is inapplicable if (1) an ordinary layperson would not misunderstand the policy’s coverage as to this occurrence, and (2) there were no other circumstances attributable to the insurer at the time the policy was negotiated and issued that would foster coverage expectations. Such circumstances may be shown if the policy exclusion: (a) is bizarre or oppressive, (b) eviscerates terms explicitly agreed to, or (c) eliminates the dominant purpose of the transaction.

Zaragoza v. West Bend Mut. Ins. Co., 549 N.W.2d 510, 515 (Iowa 1996) (citations omitted) (emphasis added). The doctrine applies only to representations made by the insurer at the time of policy negotiation and issuance. Id. Additionally, this requirement emphasizes the reliance interest upon which the doctrine is founded. Id. at 516.

Here the issue is not whether insurance coverage exists under the policy. Rather, the issue the plaintiffs are raising relates to the premium and dividend provisions of the policy. We hesitate to expand the doctrine to this situation, where coverage under the policy provisions is not in issue.

We agree with Farm Bureau that even were we to apply the doctrine of reasonable expectations outside the realm of coverage cases, there was no evidence that that the wording of the policies was bizarre or oppressive, or that there was an agreement to a term which is eviscerated by the policies, or that the dominant purpose of the policies — to provide monetary relief to the beneficiary of the deceased insured — was somehow eliminated.

Moreover, even if the doctrine were to apply, the plaintiffs face an insurmountable reliance issue. The party asserting the doctrine of reasonable expectations must show not only the expectations, but also that they were relied upon by the insurance purchaser in deciding to buy the policy. Id. The reliance showing requires an inquiry into each individual class members’ experience in purchasing insurance, as we vrill discuss further in the context of the plaintiffs’ negligent misrepresentation, common law fraud, and fraudulent inducement claims. To determine the “reasonable expectations” of any given class member, the individual inquiries surrounding each class members’ purchase of insurance would predominate over any common issues.

For all of these reasons, we conclude the district court did not abuse its discretion in concluding that individual questions predominate common questions on this issue.

B. Breach of implied covenant of good faith and fair dealing. Related to their breach of contract claim, the plaintiffs contend Farm Bureau breached its implied covenant of good faith and fair dealing when it failed to allocate “hundreds of millions of dollars of surplus every year during the class period” to “the ambiguous contracts purchased by the plaintiffs and the class to meet their ‘limited pay/vanishing premiums’ expectations created by” Farm Bureau.

Farm Bureau correctly asserts the “good faith and fair dealing” theory emerged for the first time in the plaintiffs’ resistance to the motion to decertify. Farm Bureau also asserts the theory only applies in the context of a bad faith claim for an insurance company’s failure to indemnify and defend its insured.

The district court did not specifically address this claim in its decertification ruling. However, as with the reasonable expectations claim, we likewise conclude the implied covenant claim has no application in these circumstances.

“A covenant is implied in an insurance contract that neither party will do anything to injure the rights of the other in receiving the benefits of the agreement.” Kooyman v. Farm Bureau Mut. Ins. Co., 315 N.W.2d 30, 33 (Iowa 1982). We have permitted claims against insurance companies for breach of the implied covenant of good faith by recognizing the tort of bad faith in third-party and first-party situations. Johnson v. Farm Bureau Mut. Ins. Co., 533 N.W.2d 203, 207 (Iowa 1995).

The tort of bad faith arises in situations where the insurer has denied benefits or has refused to settle a third-party’s claim against the insured within the policy limits. See, e.g., Gibson v. ITT Hartford Ins. Co., 621 N.W.2d 388, 396 (Iowa 2001) (“To establish a first-party bad-faith claim, ‘a plaintiff must show the absence of a reasonable basis for denying benefits of the policy and defendant’s knowledge or reckless disregard of the lack of a reasonable basis for denying the claim.’” (Citations omitted.) (Emphasis added.)); North Iowa State Bank v. Allied Mut. Ins. Co., 471 N.W.2d 824, 828 (Iowa 1991) (noting that the court has recognized “a bad-faith cause of action in an insurer’s representation of an insured in a third-party liability claim,” and that “an insurer may be responsible for the tort of bad faith in first-party situations in which the dispute involves the insured’s right to recover under the policy”).

The plaintiffs have neither alleged in their petition nor in subsequent filings that they are relying on bad faith. Furthermore, the tort of bad faith simply has no application in the circumstances of this case.

C. Breach of fiduciary duty. The district court did rule on this issue:

Finally, in regard to plaintiffs’ claim for breach of fiduciary duty (Count V), plaintiffs have again failed to establish beyond mere speculation that there are common questions of law and fact for the entire class. First, the relationship between insurance sales agents and customer does not, by its very nature, appear to necessarily give rise to a fiduciary relationship. Second, because the relationship between insurance agents and their clients is not necessarily a fiduciary relationship, the determination of whether a fiduciary relationship exists must be based upon the particular facts and circumstances of each individual case. Thus, the individual questions predominate the common questions in regards to plaintiffs’ claim of breach of fiduciary relationship.

(Citations omitted.)

The plaintiffs contend this ruling is not supported by the record. They further contend a fiduciary relationship may exist on a class-wide basis where, as here, the company selling the insurance is not just an insurance company, but a genuinely unique organization akin to a family. The plaintiffs cite to Farm Bureau’s admission that it owed its customers reasonable duties of disclosure and care, and testimony of Farm Bureau’s executive vice president regarding the duties of loyalty, honesty, and integrity owed by Farm Bureau to its customers.

Farm Bureau, not surprisingly, contends the district court was correct in its ruling on this issue. For reasons that follow, we agree.

A fiduciary relationship exists between two persons “when one of them is under a duty to act for or to give advice for the benefit of another upon matters within the scope of the relation.” Kurth v. Van Horn, 380 N.W.2d 693, 695 (Iowa 1986) (quoting Restatement (Second) of Torts § 874 comment a, at 300 (1979)). Some relationships, such as those between an attorney and client, guardian and ward, principal and agent, and executor and heir, “necessarily give rise to a fiduciary relationship.” Id. at 696.

Indicia of a fiduciary relationship include

the acting of one person for another; the having and the exercising of influence over one person by another; the reposing of confidence by one person in another; the dominance of one person by another; the inequality of the parties; and the dependence of one person upon another.

Id. (citation omitted). “Because the circumstances giving rise to a fiduciary duty are so diverse, any such relationship must be evaluated on the facts and circumstances of each individual case.” Id.

In Rothwell, a vanishing premium case, the plaintiffs claimed the defendant insurance company and its agents breached their fiduciary duty “by encouraging plaintiffs to replace their preexisting policies when it was not beneficial to their interests.” 191 F.R.D. at 32. The court denied class certification, explaining the fiduciary duty claim as follows:

In order to succeed with [the breach of fiduciary duty] claim, each plaintiff would need to prove: (1) the existence of a fiduciary relationship; and (2) that the policy replacement was not beneficial to his or her interests. Both showings, however, necessitate individualized inquiries that render certification inappropriate.
Determining whether Chubb owed a fiduciary duty to each plaintiff would require a fact-intensive inquiry into the nature of the relationship between policyholder and agent.

Id. (citations omitted); see also Kaser v. Swann, 141 F.R.D. 337, 341 (M.D.Fla. 1991) (“To show the existence of a fiduciary relationship the members of the class would have to prove that an exchange of trust and confidence occurred between each plaintiff and the [defendant]. This would require testimony from every [plaintiff] and, as such makes this case unsuited for class certification.”)

Because the existence of a fiduciary relationship here depends on the facts and circumstances of each individual case, we conclude the district court did not abuse its discretion in concluding that individual questions predominate common questions on this issue.

D. Negligent misrepresentation, common law fraud, and fraudulent inducement. As to these claims, the district court concluded:

In regard to the plaintiffs’ claims for negligent misrepresentation, fraud, and fraudulent inducement (Counts I, III, IV), questions of justifiable reliance become unique to each putative plaintiff. The fact issue of what individual agents may have represented to putative plaintiffs predominate questions common to the class. In other words, the true focus appears to be placed upon the representations made by individual agents rather than the representations (e.g., through sales material and agent training) made by Farm Bureau as a whole. Further, without some evidence beyond mere speculation that Farm Bureau engaged in a uniform practice of misrepresentations or omissions, this Court does not believe the entire class is entitled to a presumption of reliance.

(Citations omitted.)

The plaintiffs challenge the district court’s conclusion that “questions of justifiable reliance become unique to each putative plaintiff’ and that “what individual agents may have represented to putative plaintiffs predominate questions common to the class.” In support of their challenge, the plaintiffs make the following argument. Farm Bureau’s agents were as much in the dark as the plaintiffs about the company’s approval of false and misleading “teaser rates” and “illustration rates” and the substantial probability that such rates might never be paid. Additionally, there is no evidence that Farm Bureau ever advised its agents of these facts. In short, if Farm Bureau failed to disclose these facts to its agents, then its agents could only fail to disclose these same facts in their sales presentations to the plaintiffs and the class. Therefore, individual presentations by agents to plaintiffs and the class are not relevant to the common issues here. Because material omissions are involved, the plaintiffs and the class are entitled to a presumption of reliance.

The plaintiffs’ common law fraud, negligent misrepresentation and fraudulent inducement claims have one element in common: justifiable reliance. See McGough v. Gabus, 526 N.W.2d 328, 331 (Iowa 1995) (common law fraud); Barske v. Rockwell Int’l Corp., 514 N.W.2d 917, 924 (Iowa 1994) (negligent misrepresentation); Lamasters v. Springer, 251 Iowa 69, 72, 76, 99 N.W.2d 300, 302, 304 (1959) (fraudulent inducement). The plaintiffs apparently concede this proposition but steadfastly stand on their presumption of reliance theory grounded on material omissions.

Several vanishing premium cases have addressed the presumption of reliance issue. Those that have refused to apply the presumption did so because the evidence failed to establish essentially uniform misrepresentations. See, e.g., Keyes, 194 F.R.D. at 255-57 (plaintiffs alleged that all class members were victims of standardized misrepresentations and omissions when defendant used its software to create the uniform illustrations; court held that presumption of reliance not appropriate where the individual plaintiffs did not receive the same mix of information — some agents used the illustrations and others did not and there was no standardized sales pitch); Cohn, 189 F.R.D. at 216-17 (plaintiffs asserted defendant’s training video discouraged agents from disclosing possibility that dividend rates could decline in the future; court rejected plaintiffs presumption of reliance argument because there was no evidence that all the agents saw the video and then made uniformly deceptive sales presentations); Jackson Nat’l, 183 F.R.D. at 221 (plaintiffs asserted vanishing premium illustrations “premised on unsupported and unsustainable interest crediting rate assumptions” were centrally prepared in the home office and distributed to brokers; court held presumption of reliance not appropriate where brokers were not subject to and did not follow uniform policies regarding distribution of policy illustrations and brokers were not required to follow uniform scripts; therefore information contained in the illustrations was conveyed to consumers, if at all, in the context of varying oral representations). See also Cope, 696 N.E.2d at 1004 (“[Although having some common core, a fraud case may be unsuited for treatment of a class action if there was material variation in the representations made or in the kinds or degrees of reliance by the person to whom they were addressed.” (quoting 1966 Advisory Committee Notes to Fed.R.Civ.P. 23(b)(3)) (emphasis added)).

The plaintiffs have cited several vanishing premium cases that have applied a presumption of reliance where management allegedly made material nondisclo-sures. See, e.g., In re Great S. Life Ins. Co. Sales Practices Litig., 192 F.R.D. 212, 219-20 (N.D.Tex.2000); Varacallo v. Mass. Mut. Life Ins. Co., 332 N.J.Super. 31, 752 A.2d 807, 814-18 (App.Div.2000). However, as one court in a vanishing premium case has observed on this issue, the plaintiffs here have cited no case in which reliance was presumed when individual plaintiffs did not necessarily receive the same mix of information. See Keyes, 194 F.R.D. at 257 n. 5; cf. Kramersmeier, 440 N.W.2d at 878-79 (district court ruling granting class action certification affirmed where bond purchasers alleged losses they suffered were attributable to material misrepresentations contained in the prospectus published in connection with the bond offering, and a failure to disclose certain material facts; common questions of law and fact concerning “whether the prospectus, as the common source of’ information provided by defendant, “misled the plaintiffs and other bond purchasers in alleged violation of statutory and common law”).

The complaint files here reveal the individualized nature of the sales presentations by Farm Bureau agents. For example, one client complained he purchased a second policy based on an agent’s representation that he was offering a “special policy” to a “select group.” Another agent wrote “no premiums due” on a client’s policy sheet, and sent a note congratulating the client on the purchase and stating no premiums were due. Even the facts surrounding plaintiffs’ purchase of insurance reveals the individualized nature of their claims — none of them recall receiving an illustration from their agent, Merrill Perry, before their purchase of insurance. In addition, Farm Bureau did not require agents to use materials provided by Farm Bureau for use in making sales. Therefore even assuming the nondisclosures as the plaintiffs allege, there is simply no evidence that the agents made uniform presentations, used scripts provided by Farm Bureau, and used the illustrations in all cases. Presumption of reliance would be inappropriate here because common facts, if any, do not predominate over individual facts that must be developed to determine the reliance issue.

We conclude the district court did not abuse its discretion when it (1) refused to apply a presumption of reliance to the fraud claims and (2) concluded that individual questions predominate common questions on this issue.

The district court summed up its reasons for finding that individual questions of law and fact predominate common questions this way:

In reaching this conclusion, this court is abundantly aware of its prohibition against examining the merits of plaintiffs’ claims. However, after nearly a full year of discovery, plaintiffs cannot direct this court to any piece of evidence to support their theory of uniform deception. Without more than mere speculation, this court believes that a trial as a class action would spend more time delving into individual questions of fact (■e.g. what individual agents represented to the putative plaintiffs, whether the agents employed illustrations in their sales meetings with putative plaintiffs, whether putative plaintiffs reasonably relied upon misrepresentations) than examining questions common to the entire class.

We agree with this assessment and therefore conclude the district court did not abuse its discretion when it granted Farm Bureau’s motion to decertify the class.

VII. Disposition.

Because we find no abuse of discretion in the district court’s decertification of the class action, we affirm.

AFFIRMED.


author: /s/Paul H. Anderson Associate Justice

text:
    In re Petition for DISCIPLINARY ACTION AGAINST Jonathan C. LEWIS, a Minnesota Attorney, Registration No. 172017.
    No. C0-02-2081.
    Supreme Court of Minnesota.
    Aug. 4, 2003.
   ORDER

On January 8, 2003, this court suspended respondent Jonathan C. Lewis from the practice of law for a period of 60 days. In re Lewis, 655 N.W.2d 319 (Minn.2003).

The Director of the Office of Lawyers Professional Responsibility has filed with this Court an affidavit certifying that respondent has filed an affidavit of compliance that respondent complied with the terms of the suspension order and that the Director does not object to reinstatement.

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that respondent Jonathan C. Lewis is reinstated to the practice of law in the State of Minnesota effective immediately.

BY THE COURT:

/s/Paul H. Anderson Associate Justice


author: /s/Kathleen A. Blatz Chief Justice

text:
    In the Matter of the WELFARE OF T.J.C., Child.
    No. C3-02-1622.
    Supreme Court of Minnesota.
    Aug. 5, 2003.
   ORDER

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED (1) that the petition of T.J.C. for further review of the decision of the court of appeals be, and the same is, granted; (2) that the decision of the court of appeals be, and the same is, reversed for reconsideration of the harmless error analysis; and (3) that the case is remanded to the court of appeals for further proceedings consistent with the harmless error standard articulated in State v. Juarez, 572 N.W.2d 286 (Minn.1997): whether the adjudication of delinquency was surely unattributable to the error.

BY THE COURT

/s/Kathleen A. Blatz Chief Justice


author: /s/Helen M. Meyer Associate Justice

text:
    Sandra M. VIGOREN, Relator, v. Joseph CATERING and Fremont Compensation Insurance Group, Respondents.
    No. A03-377.
    Supreme Court of Minnesota.
    Aug. 7, 2003.
    Raymond R. Peterson, McCoy, Peterson & Jorstad, Minneapolis, MN, for Relator.

      Timothy P. Eclov, Johnson & Condon, PA, Minneapolis, MN, for Respondents.
   ORDER

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that the decision of the Workers’ Compensation Court of Appeals filed March 27, 2003, be, and the same is, affirmed without opinion. See Minn. R. CivApp. P. 136.01.

BY THE COURT:

/s/Helen M. Meyer Associate Justice