author: G. BARRY ANDERSON, Judge.

text:
    Barry WALTHER, Petitioner, Appellant, v. Loretta J. LUNDBERG, Lincoln County Registrar of Titles, Respondent.
    No. C2-02-798.
    Court of Appeals of Minnesota.
    Dec. 17, 2002.

      Paul E. Stoneberg, Stoneberg, Giles & Stroup, P.A., Marshall, MN, for appellant.
    Arvid Wendland, Wendland Timmer-man, Blue Earth, MN, for respondent.

      Considered and decided by HUDSON, Presiding Judge, PETERSON, Judge, and ANDERSON, Judge.
   OPINION

G. BARRY ANDERSON, Judge.

Appellant challenges a district court order dismissing his petition for mandamus seeking to require respondent, the Registrar of Titles in Lincoln County, to remove an easement memorial from his certificate of title. Appellant asserts: (1) respondent had an official duty to refrain from unilaterally adding an easement to his certificate of title, (2) the addition of the easement was a public wrong that injured appellant, and (3) “proceedings subsequent” do not afford appellant an adequate remedy. Because we conclude the proceedings subsequent remedy provides appellant with an adequate remedy at law, we affirm.

FACTS

Appellant is the purchaser of real property located in Lincoln County. On June 13, 1996, an easement was created by written agreement between the then-owners of appellant’s property and the adjoining property, and registered as document number 3785. The easement granted the adjoining property owner (the dominant estate) the right to construct and maintain a tile drain across the property eventually purchased by appellant (the servient estate). Respondent never memorialized the easement on certificate of title number 1327 issued to appellant’s predecessor in interest or certificate number 1422 issued to appellant. During the week of April 26, 2001, respondent memorialized the easement on appellant’s certificate of title. Respondent did not refer the matter to the Lincoln County Examiner of Titles pursuant to Minn.Stat. § 508.71, subd. la (2002).

Originally, appellant sought a peremptory writ of prohibition and mandamus directing respondent to remove the easement memorial on appellant’s certificate of title. The district court denied the writ and ordered that the matter proceed to trial. The court of appeals affirmed the district court. Walther v. Lundberg, No. C8-01-2030 (Minn.App. Dec. 18, 2001) (order).

Respondent then moved to dismiss the action under Minn. R. Civ. P. 12.02(a) and (e) for lack of subject matter jurisdiction and failure to state a claim. The district court granted respondent’s motion and dismissed the petition for lack of subject matter jurisdiction after concluding that there was a plain, speedy, and adequate remedy in the ordinary course of law found in Minn.Stat. § 508.71, subd. 2. The present appeal followed.

ISSUE

Does the availability of a proceedings subsequent remedy preclude the issuance of a writ of mandamus to compel a registrar of titles to remove an easement added, without authority, to a certificate of title?

ANALYSIS

Ordinarily, on appeal, we will reverse a district court’s order on an application for mandamus relief “only when there is no evidence reasonably tending to sustain the trial court’s findings.” Coyle v. City of Delano, 526 N.W.2d 205, 207 (Minn.App.1995). When the district court’s decision on a petition for mandamus is based only on questions of law, however, we exercise de novo review. Demolition Landfill Services, LLC v. City of Duluth, 609 N.W.2d 278, 280 (Minn.App.2000), review denied (Minn. July 25, 2000). The question of law presented in this case is whether a writ of mandamus should issue to compel a registrar of titles to remove an easement memorial or whether Minn.Stat. § 508.71, subd. 2, provides an adequate legal remedy precluding such an order.

Mandamus is an extraordinary remedy that should only be awarded in the exercise of judicial discretion and upon equitable principles. Coyle, 526 N.W.2d at 207. To obtain mandamus relief, a petitioner must demonstrate (1) the failure of an official duty clearly imposed by law, (2) a public wrong specifically injurious to petitioner, and (3) no other adequate specific legal remedy. Minn.Stat. §§' 586.02, .04 (2002); Coyle, 526 N.W.2d at 207.

1. Failure of an official duty imposed by law

Appellant asserts that Minn.Stat. § 508.71, subd. la, did not authorize respondent to unilaterally add the easement memorial to appellant’s certificate of title without first referring the matter to the examiner of titles. He argues that none of the statutory exceptions permitting such unilateral action are applicable. In pertinent part, this statute states:

The registrar may correct clerical errors or omissions made by the registrar’s staff in producing certificates of title. * * * If the error or omission may adversely affect the interest of a party; the registrar shall refer the correction to the examiner of titles. The registrar shall prepare subsequent certificates correctly and omit the memorial of the correction.

Minn.Stat. § 508.71, subd. 1a (2002). Appellant asserts that since the inclusion of the easement notation on his certificate of title “adversely affects” his interests, respondent erred by not referring the correction to the examiner of titles.

Appellant is correct that the error here was not clerical and therefore the exception in section 508.71, subd. 1a, does not apply. Additionally, the statute imposes an affirmative duty on respondent to refer certificates of title to the examiner for material corrections. For purposes of this appeal, it is clear that respondent failed to carry out the duty imposed by law to refer the certificate correction to the examiner of titles.

2. Public wrong injurious to appellant

Appellant claims that respondent’s failure to abide by statutory procedures by unilaterally amending his certificate of title constituted a public wrong. He claims that the memorialization of the easement on his certificate was injurious because it restricts his -power of alienation, affects the resale value of the land, and interferes with his right to quiet enjoyment of his property in violation of the Minnesota Constitution, art. I, § 7.

Although the parties have not addressed the extent of the injury to appellant, we recognize that an easement permitting the construction and maintenance of a tile drain across the appellant’s property would likely affect the fair market value of the parcel. There is no doubt that respondent’s failure to carry out her statutory duties constituted a public wrong.

3. No other adequate legal remedy

Because the first two requirements are met, the central issue is whether other adequate legal bases exist to preclude appellant from obtaining mandamus relief. Respondent, argues that, because proceedings subsequent under section 508.71, subd. 2, are an adequate means for appellant to correct the alleged error, mandamus relief is not appropriate. Appellant claims that proceedings subsequent do not afford him adequate grounds for relief, and, therefore, mandamus is justified.

The Minnesota Torrens Act presumes that the holder of a certificate of title owns conclusive title to the real property if the certificate was issued pursuant to proper judicial proceedings. Minn.Stat,. § 508.36 (2000); Hersh Properties, LLC v. McDonald’s Corp., 588 N.W.2d 728, 733 (Minn.1999). The purpose of this system is to be able to determine the state of title to a parcel by examining a single document rather than examining extensive abstracts of title. Hersh Properties, 588 N.W.2d at 733. Because of this strong presumption of a certificate’s validity, there are detailed and explicit statutory mechanisms that property owners must follow in order to correct errors or amend an erroneous certificate of title. See In re Metro Siding, 624 N.W.2d 303, 307 (Minn.App.2001) (stating that “[o]nce a proceeding has been held to register land, the certificate of title is conclusive proof of ownership and cannot be altered except as authorized by the [Torrens] Act.”).

First, respondent may correct clerical errors or omissions if they do not adversely affect the interests of a party. Minn. Stat. § 508.71, subd. la. As noted, though, the error here was not clerical and therefore this exception does not apply. Second, if the proposed modification will cause a significant change in one party’s interests, respondent must refer the correction to the examiner of titles. Minn. Stat. § 508.71, subd. la. This did not occur here. Finally, at any time, a petition for proceedings subsequent may be filed with the district court to correct “any error or omission * * * made in entering a certificate of title or any memorial thereon.” Id., subd. 2.

We conclude that, although respondent did not properly refer the correction to the examiner of titles as required by law, the proceedings subsequent alternative affords appellant adequate legal means to correct the certificate of title. The process for doing so is found in Minn.Stat. § 50'8.71, subd. 2:

The court may hear and determine the petition after notice given to all parties in interest, as determined by the examiner of titles, by a summons issued in the form and served in the manner as in initial applications or by an order to show cause, as the court may deem appropriate. After notice has been given as ordered, the court may order the entry of a new certifícate of title, the entry, amendment, or cancellation of a memorial upon a certificate of title, or grant any other relief upon the terms, requiring security if necessary, as it may consider proper.

Id.

Any assertion by appellant that the relief requested is not within the scope of proceedings subsequent is without merit. In 1983, the legislature expanded the scope of permissible issues that may be litigated in proceedings subsequent. At that time, the statute was amended as follows (added language in italics):

A registered owner or other person in interest may, at any time, apply by petition to the court, upon the ground * * * (7) * * * that any other alteration or adjudication should be made. * * * After notice has been given as ordered, the court may order the entry of a new certificate, the entry, amendment, or cancellation of a memorial upon a certificate, or grant any other relief upon the terms, requiring security if necessary, as it may consider proper.

Id. (emphasis added); 1983 Minn. Laws ch. 92, § 21; Metro Siding, 624 N.W.2d at 307-08. This amendment provided the statutory basis for using proceedings subsequent for a wide range of issues, including the relief that appellant now seeks. Metro Siding, 624 N.W.2d at 307-08.

The more expansive use of the proceedings subsequent remedy was evident in Nolan v. Stuebner, 429 N.W.2d 918 (Minn.App.1988), review denied (Minn. Dec. 16, 1988). Nolan held that respondents should have brought proceedings subsequent to determine the placement of an easement and not a declaratory judgment action. Id. at 922-23. This court stated that

while a certificate of title is conclusive evidence that there is an easement contained in the certificate, it does not preclude judicial inquiry into the validity of the easement. A certificate of title may be altered by order of the court upon any reasonable ground.

Id. at 922.

Recently, the Metro Siding court, citing Nolan, held that the issue of the parties’ respective ownership interests in property could also be determined in proceedings subsequent. Metro Siding, 624 N.W.2d at 308. This court held that the scope of inquiry in such a hearing is “not limited to claims that can be resolved solely by referring to documents recorded on the certificate of title.” Id.

Nolan and Metro Siding demonstrate that the scope of issues appropriately litigated in proceedings subsequent encompass appellant’s, argument. There is no merit to the, argument that Minn.Stat. § 508.71 cannot provide a remedy to appellant on the basis that such a correction of a certificate- of title is outside the scope of proceedings subsequent.

Appellant argues that the proceedings subsequent remedy places a harsh burden on him for an error that both parties seem to admit respondent made. Appellant claims that granting his request for a writ of mandamus to remove the easement from his certificate of title would -more equitably place any burden of proof on the easement holder who could then petition the court in- a proceedings subsequent under Minn.Stat. § 508.71, subd. 2, to vindicate the rights of the dominant estate.

This equitable argument seems attractive at first glance: between two innocent victims of a bureaucratic mistake, the burden of proof should fall on the easement holder requesting the interest be recognized. But, that is not the issue before this court. Regardless of the impropriety of respondent’s actions, the only issue here is whether the extraordinary remedy of mandamus is appropriate or whether appellant has other avenues of legal relief. Since appellant may utilize proceedings subsequent under Minn.Stat. 508.71, subd. 2, we conclude that he is not without legal recourse. The existence of a plain, speedy, and adequate remedy in the ordinary course of law precludes the issuance of the extraordinary writ of mandamus.

We recognize that appellant may view this decision as placing the burden of respondent’s error on him, an innocent party. The alternative that appellant urges, however, would remove the easement me-morialization and thereby injure another apparently innocent party, the easement holder. Because we need not decide the respective rights in the property, we hold that, although respondent acted improperly, the existence of an independent legal remedy precludes the issuance of this writ. We see no other justifiable conclusion based on the grounds required before the extraordinary writ of mandamus will issue. Minn.Stat. § 586.02; Coyle, 526 N.W.2d at 207.

DECISION

Appellant established only two of the three requirements for obtaining mandamus relief. Respondent acted contrary to an official duty imposed by law by adding the easement memorial to the certifícate of title without authority constituting a public wrong injurious to appellant. But appellant fails to show how proceedings subsequent do not provide an adequate remedy to correct respondent’s actions. Although appellant claims that the proceedings subsequent remedy is not fair, this does not obscure the fact that a plain, speedy, and adequate remedy exists in the ordinary course of law permitting him to obtain the relief he requests. The existence of such a remedy precludes the grant of mandamus relief.

Affirmed.

      . The district court dismissed appellant's petition for lack of subject matter jurisdiction but also found that the existence of an adequate legal remedy precluded issuance of a writ of mandamus. As a threshold matter, we hold that the district court did have subject matter jurisdiction. The facts here are distinguishable from the cases cited by respondent, Silver Bay Area Citizens v. Sch. Dist. No. 381, 448 N.W.2d 92 (Minn. App 1989), review denied (Minn. Jan. 23, 1990) and Dokmo v. Indep. Sch. Dist. No. 11, 459 N.W.2d 671 (Minn. 1990). In both of those cases, the district court lacked jurisdiction because the court of appeals was the proper forum for the case to be brought in, not the district court. See Dokmo, 459 N.W.2d at 673; Silver Bay, 448 N.W.2d at 94. In other words, the district court lacked subject matter jurisdiction in those cases because they were litigated in the wrong- court.
      Here, ’ there is no question regarding the appropriate forum in which to bring the present action. The district court is the appropriate forum for appellant's petition for proceedings subsequent. See, e.g., Minn.Stat. § 508A.02 (2002); In re Metro Siding, Inc., 624 N.W.2d 303, 307-08 (Minn.App.2001) (appealing district court's manner of conducting proceedings subsequent deprived appellant of due process).

      . Minnesota Cqnstitution, art. I, § 7 states: "[n]o person shall be * * * deprived of life, liberty or property without due process of law

      . Minn.Stat. § 508.36 (2002) provides:
      [e]very person receiving a certificate of title pursuant to a decree of registration and every subsequent purchaser of registered land who receives a certificate of title in good faith and for a valuable consideration shall hold it free from all encumbrances and adverse claims, excepting only the estates, mortgages, liens, charges, and interests as may be noted in the last certificate of title in the office of the registrar * * *.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Minnesota, Respondent, v. Liza Marie GOEBEL, Appellant.
    No. C4-02-558.
    Court of Appeals of Minnesota.
    Dec. 24, 2002.

      Mike Hatch, Attorney General, St. Paul, MN; and Doug Johnson, Washington County Attorney, Kari A. Lindstrom, Assistant County Attorney, Stillwater, MN, for respondent.
    Richard Sand, Richard Sand & Associates, P.A., St. Paul, MN, for appellant.
    Considered and decided by HUDSON, Presiding Judge, PETERSON, Judge, and ANDERSON, Judge.
   OPINION

G. BARRY ANDERSON, Judge.

Partially based on evidence obtained in a search of appellant’s trash, a warrant was issued for the search of appellant’s home. A search of appellant’s home produced significant amounts of various drugs and other contraband. Appellant sought to have the warrant declared invalid as based on an illegal, warrantless search of her garbage and to have the fruits of the search suppressed. The district court denied appellant’s motion to suppress. In a trial based on stipulated facts pursuant to State v. Lothenbach, 296 N.W.2d 854 (Minn.1980), appellant was convicted of sale of a controlled substance — 10 grams or more— in violation of Minn.Stat. § 152.021, subd.l(l) (1998). Appellant challenges the district court’s denial of her motion to suppress. Because we hold that the search of appellant’s garbage was legal, we affirm.

FACTS

A confidential informant (Cl) advised police officer Marv Stutz that appellant Liza Marie Goebel was a “heavy controlled substance user,” and as a consequence, appellant’s children may be in jeopardy. Stutz went to appellant’s residence and obtained several trash bags that had been set out for collection on the street at the end of the driveway in front of the residence. Stutz took at least two bags to the police station and searched them. In one of the bags, Stutz discovered a spoon with a white powdery residue that ultimately tested positive for cocaine.

Based on the report of the Cl and the evidence found in appellant’s trash, a search warrant for her home was issued. The subsequent search revealed 29.6 grams of methamphetamine, cocaine, and currency in the amount of $36,908.67. After waiving her Miranda rights, appellant made incriminating statements regarding purchasing, breaking down, and selling drugs.

Appellant filed a motion seeking suppression of the evidence obtained pursuant to the search warrant. The district court denied appellant’s motion. Following a bench trial on stipulated facts pursuant to State v. Lothenbach, 296 N.W.2d 854 (Minn.1980), appellant was convicted of sale of a controlled substance — 10 grams or more — in violation of Minn.Stat. § 152.021, subd.l(l) (1998).

Respondent argues that the issue concerning the legality of the trash search was not properly raised before the district court and is raised for the first time on appeal.

ISSUES

I. Did appellant adequately challenge the trash search before the district court, thereby properly preserving the issue for appeal?

II. Did the district court err in denying appellant’s motion to dismiss evidence obtained through the warrantless search of her trash?

ANALYSIS

I. Was the issue concerning the trash search properly raised before the district court?

Respondent asserts that appellant failed to raise the issue regarding the legality of the trash search before the district court, and thus, waived the issue on appeal. Issues raised for the first time on appeal will not typically be considered by the reviewing court. In re Welfare of K.T., 327 N.W.2d 13, 16-17 (Minn.1982); State v. Propotnik, 355 N.W.2d 195, 199 (Minn.App.1984), review denied (Minn. Dec. 20,1984).

[A] pretrial motion to suppress should specify, with as much particularity as is reasonable under the circumstances, the grounds advanced for suppression in order to give the state as much advance notice as possible as to the contentions it must be prepared to meet at the hearing.

State v. Needham, 488 N.W.2d 294, 296 (Minn.1992) (citing 1 W. LaFave and J. Israel, Criminal Procedure § 10.1(b) (1984)).

Although appellant could have been more direct in raising the specific issue of the legality of the trash search, we conclude that the issue was sufficiently discussed to put the state on notice of the challenge. In the memorandum in support of her motion to suppress, appellant specifically states that the trash search was improper because the trash

was not yet abandoned property because it was still on the defendant’s real estate at the end of the driveway. [T]he officer has no right to come onto [appellant’s] property and search through trash bags * * * without a warrant * * *. He was trespassing on her property.

In addition, at the omnibus hearing, appellant’s counsel stated that appellant was challenging , probable cause for the search warrant, which would include the trash search which clearly played a significant role in establishing probable cause.

At the omnibus hearing, respondent elicited testimony from the searching officer as to the specifics of the trash search. This indicates, at the very least, that respondent was aware of the issue. In addition, the district court, in its memorandum accompanying its order on the motion to suppress, specifically states that the trash search was valid because the trash had been “abandoned at the end of the driveway on the street.” In light of all this, we cannot say that the issue was not raised before the district court. We hold that the issue concerning the validity of the war-rantless search of appellant’s trash was sufficiently raised and is properly before this court.

II. Was the trash search legal?

Appellant’s only argument before this court is that the trash search was illegal. Thus, appellant claims, the search warrant issued based on evidence obtained through the search of appellant’s trash was not valid and all evidence obtained as a result of the search should have been suppressed.

‘When reviewing pretrial orders on motions to suppress evidence, we may independently review the facts and determine, as a matter of law, whether the district court erred in suppressing — or not suppressing — the evidence.” State v. Harris, 590 N.W.2d 90, 98 (Minn.1999) (citing State v. Othoudt, 482 N.W.2d 218, 221 (Minn.1992)).

The Minnesota Supreme Court has recognized that “a householder may ordinarily have some expectation of privacy in the items he places in his garbage can.” State v. Oquist, 327 N.W.2d 587, 591 (Minn.1982). However, when a police officer searches trash, set on the curb for routine pickup, without trespassing on the premises, no illegal search has occurred. State v. Dreyer, 345 N.W.2d 249, 250 (Minn.1984).

Stutz testified that the garbage searched was “out on the curb at the end of the driveway[.]” It is evident that the district court believed this testimony because the memorandum accompanying the order on the motion to suppress states that the “garbage was abandoned at the end of the driveway on the street.” In light of this finding, the holding in Dreyer controls and is determinative here. Appellant’s trash does not come under the protection of the Fourth Amendment or Minnesota’s constitutional equivalent.

It is, as the United States Supreme Court points out, .“common knowledge” that plastic garbage bags left on or beside a public street are vulnerable to any number of invasions, whether from animals or members of the public. California v. Greenwood, 486 U.S. 35, 40, 108 S.Ct. 1625, 1628-9, 100 L.Ed.2d 30 (1988) (citing People v. Krivda, 5 Cal.3d 357, 96 Cal.Rptr. 62, 486 P.2d 1262, 1269 (1971)). Therefore, the expectation of privacy in garbage adjacent to a public street is eroded.

Appellant relies heavily on State v. Oquist, in which the Minnesota Supreme Court stated that Minnesota citizens do maintain an expectation of privacy in garbage on their property. 327 N.W.2d at 591. But the protection the Oquist court recognized extended to garbage on private property. Id. Subsequent Minnesota case law has established that garbage placed on the curb for collection does not fall within that protection. Dreyer, 345 N.W.2d at 250. Here, the district court found that the garbage was on the street. If garbage on the curb is not protected from warrantless search, it certainly cannot be said that garbage on the street is so protected.

DECISION

Appellant adequately challenged the legality of the trash search before the district court, and the issue was properly presented on appeal. Because the search of appellant’s trash was legal, the district court did not err for denying appellant’s motion to suppress evidence obtained through the search of her trash.

Affirmed.

      . Analysis of this issue through application of the curtilage test, as laid out in State v. Krech, 403 N.W.2d 634, 636-37 (Minn.1987), is not necessary in light of Dreyer, as applied to the particular facts of this case. 345 N.W.2d 249. It should be noted that recent cases applying the curtilage test, with fact patterns more favorable to a Fourth Amendment challenge than that here, have yielded results that would be unfavorable to this appellant. See State v. Hanson, No. C5-01-686, 2002 WL 109373 (Minn.App. Jan.29, 2002); see also State v. Srnsky, No. C5-01-381, 2001 WL 1262987 (Minn.App. Oct.23, 2001), review denied (Minn. Jan. 15, 2002); see also State v. Larson, No. C5-98-2409, 1999 WL 970319 (Minn.App. Oct.26, 1999).


author: WILLIS, Judge.

text:
    Jolane WOOD, individually, and as mother and natural guardian of H.R., J.A.R., and M.A.B., Respondent, v. DIAMONDS SPORTS BAR & GRILL, INC., Appellant.
    No. C7-02-845.
    Court of Appeals of Minnesota.
    Dec. 24, 2002.

      Gary T. LaFleur, Stephanie A. Riley, Babcock, Neilson, Mannella, LaFleur & Klint, Anoka, MN, for respondent.
    Jerome R. Klein, Candlin & Heck, Bloomington, MN, for appellant. •
    Considered and decided by MINGE, Presiding Judge, WILLIS, Judge, and WRIGHT, Judge.
   OPINION

WILLIS, Judge.

Appellant, the defendant in a dram-shop action, challenges the district court’s denial of summary judgment on the jurisdictional question of whether respondent complied with the notice requirement of Minn.Stat. § 340A.802 (2002) in making her claim for damages. We affirm.

FACTS

Respondent Jolane Wood’s boyfriend was injured in an automobile accident after leaving appellant Diamonds Sports Bar & Grill (Diamonds), where he had been served and had consumed alcohol. Wood, who has since married the boyfriend, filed a dram-shop claim against Diamonds for loss of support and other civil damages under Minn.Stat. § 340A.801 (2002).

Dram-shop claims are subject to a notice requirement. Id. § 340A.802 (2002); May v. Streaker, 453 N.W.2d 549, 554 (Minn.App.1990), review denied (Minn. June 15, 1990). Wood’s attorney had to give written notice of certain facts surrounding the boyfriend’s injuries within 240 days after entering into an attorney-client relationship for the purpose of bringing the dram-shop claim. See Minn. Stat. § 340A.802. The parties do not dispute that Wood’s attorney in the dram-shop action served a summons and complaint on Diamonds, containing the information that the statute requires, within 240 days after entering into an attorney-client relationship with Wood. But after the accident and before she initiated the dram-shop claim, Wood had retained another attorney for the purpose of filing for bankruptcy, and the bankruptcy attorney provided no written notice of a dram-shop claim to Diamonds.

Diamonds brought a motion for summary judgment, arguing that the district court did not have subject-matter jurisdiction because Wood failed to comply with the notice requirement (1) by not serving notice within 240 days after entering into an attorney-client relationship with the bankruptcy attorney and (2) by not serving notice before serving the complaint. The district court denied summary judgment, concluding that (1) Diamonds did not establish as a matter of law that the bankruptcy attorney represented Wood for purposes of the dram-shop claim, (2) service of a complaint that meets the criteria described in section 340A.802 could satisfy the notice requirement, and (3) Wood substantially complied with the notice requirement. Having denied Diamonds’ motion on other grounds, the district court did not address Wood’s argument that Diamonds had actual notice of the dram-shop claim. Diamonds now appeals.

ISSUES

I. Is the issue of whether Wood’s bankruptcy attorney should have provided notice of the dram-shop claim to Diamonds properly before this court?

II. Can a plaintiff satisfy the notice requirement for a dram-shop claim by serving a complaint that contains the information described in Minn.Stat. § 340A.802, subd. 1 (2002), within the time period provided by Minn.Stat. § 340A.802, subd. 2 (2002)?

ANALYSIS

I.

Wood has moved this court to strike that part of Diamonds’ reply brief that argues that the district court erred by concluding that Diamonds did not establish as a matter of law that Wood’s bankruptcy attorney should have provided Diamonds with notice of the dram-shop claim. Wood argues that Diamonds failed to raise this issue in its main brief and that discussion of the issue in the reply brief violates Minn. R. Civ.App. P. 128.02, subd. 3. Diamonds counters that Wood’s claim in her respondent’s brief that she complied with the notice requirement opened the door for the issue of whether her bankruptcy attorney should have served notice.

“The appellant may file a brief in reply to the brief of the respondent.” Minn. R. Civ.App. P. 128.02, subd. 8. But the “reply brief must be confined to new matter raised in the brief of the respondent.” Id. If an argument is raised in a reply brief but not raised in an appellant’s main brief, and it exceeds the scope of the respondent’s brief, it is not properly before this court and may be stricken from- the reply brief. Berg v. State, 557 N.W.2d 593, 596 (Minn.App.1996).

Diamonds raised for the first time in its reply brief the issue of whether the bankruptcy attorney should have served notice. Although it identified the issue in its statement of the case, Diamonds did not discuss the issue in its main brief, and Wood’s general assertion that she satisfied the notice requirement is insufficient support for Diamonds’ specific attack on the bankruptcy attorney’s failure to provide notice. We conclude, therefore, that the issue is not properly before this court and grant Wood’s motion to strike the challenged portion of Diamonds’ reply brief.

II.

Diamonds contends that the district court erred by concluding that service of a complaint can satisfy the notice requirement of Minn.Stat. § 340A.802 (2002). Diamonds maintains that service of a complaint cannot satisfy the requirement because the statute requires that notice precede the commencement of any dram-shop action. Statutory construction is a question of law, which this court reviews de novo. Brookfield Trade Ctr., Inc. v. County of Ramsey, 584 N.W.2d 390, 393 (Minn.1998).

The notice requirement states that

[a] person who claims damages * * * from a licensed retañer of alcoholic beverages * * * for or because of an injury ■within the scope of section 340A.801 must give ’ a written notice to the’ licensee * * * stating:
(1) the time and date when and person to whom the alcoholic beverages were sold or bartered;
(2) the name and address of the person or persons who were injured or whose property was damaged; and
(3) the approximate time and date, and the place whére the injury to person or property occurred.

Minn.Stat. § 340A.802, subd. 1. Furthermore,

[i]n the case of a claim for damages, the notice must be served by the claimant’s attorney within 240 days of the date of entering an attorney-client relationship with the person in regard to the claim.

Id., subd. 2.

The statute also provides that “[n]o action for damage * * * may be maintained unless the notice has been given,” id., and the supreme court has characterized statutory notice as a “condition-precedent” to bringing a dram-shop claim, Schulte v. Corner Club Bar, 544 N.W.2d 486, .488 (Minn.1996). But the statute’s limitations provision states that “[n]o action may be maintained * * * unless commenced within two years after the injury.” Minn.Stat. § 340A.802, subd. 2.

The purpose of statutory construction is to ascertain and effectuate the intent of the legislature.- Id. § 645.16 (2002). ■

When the words of a law in their application to an existing situation are clear and free from all ambiguity, the letter of thé‘ law shall not be disregarded under the pretext of pursuing the spirit.

Id. Absent ambiguity, therefore, “the court must look only to the plain meaning of the statutory language.” Boutin v. LaFleur, 591 N.W.2d 711, 715 (Minn.1999) (citation omitted). In interpreting statutory language, “[w]ords and phrases are construed according to rules of grammar and according to their common and approved usage * * Minn.Stat. § 645.08(1) (2002).

The plain meaning of the dram-shop notice statute is that, if a plaintiff has retained an attorney for the purpose of bringing a dram-shop claim, the attorney must provide notice to the licensee of certain facts regarding the potential claim within 240 days after entering into the attorney-client relationship. Nothing in the statute indicates that service of a complaint that provides the information described in section 340A.802, subdivision 1, and that is served within 240 days after an attorney is retained cannot provide the required notice.

But Diamonds contends that the statute requires that written notice must be served before commencement of a dram-shop action by service of a summons and complaint. Diamonds ¿sserts that the language of section 340A.802, subdivision 2, stating that no action may be “maintained” unless the notice requirement is satisfied, also means that no action may be commenced without earlier statutory notice.

We find Diamonds’ interpretation of “maintained” to be unpersuasive. First, “to maintain” is defined as:

1. To keep up or carry on; continue * * * 2. To keep in an existing state; preserve or retain * * * 3. To keep in a condition of good repair or efficiency * * * 4a. To provide for; support * * * b. To keep in existence; sustain * * * 5. To defend or hold against criticism or attack * * * 6. To declare to be true; affirm * * * [or] 7. To adhere or conform to; keep * * *.

American Heritage Dictionary 1055 (4th ed.2000). This definition suggests that the preferred sense is “to continue” rather than “to commence.” Furthermore, in its limitations provision, Minn.Stat. § 340A.802, subd. 2, the statute uses both “maintained” and “commenced” in the same sentence, indicating that the legislature intended the words to have discrete meanings. See Pillsbury v. United Eng’g Co., 342 U.S. 197, 200, 72 S.Ct. 223, 225, 96 L.Ed. 225 (1952) (interpreting similarly a federal statute).

Diamonds argues that the purpose of the notice requirement is to allow the licensee time to conduct a pre-litigation investigation of the facts giving rise to a dram-shop claim. We recognize that the supreme court has said that one purpose of the notice requirement is to “provide dramshops with an early opportunity to investigate claims * * Wegan v. Village of Lexington, 309 N.W.2d 273, 280 (Minn.1981). But Diamonds does not suggest how much time the statute gives the licensee to conduct such an investigation. Moreover, the suggested purpose of providing time for pre-litigation investigation would render part of the statute ineffective, and we presume that the legislature does not intend such an outcome. See Minn.Stat. § 645.17(2) (2002). For example, if a dram-shop plaintiff retained an attorney one day before the expiration of the limitations period, the plaintiff would have one day to serve both the notice and the summons and complaint to preserve the dram-shop claim. If the purpose of the notice requirement is to allow for pre-litigation investigation, the plaintiff could not sue the licensee, because the licensee could not investigate before commencement of the action. Diamonds’ interpretation of the notice requirement would deduct from the limitations period some undefined period necessary to conduct a pre-litigation investigation, leaving the two-year * limitations provision partially ineffective. But more importantly, Diamonds admits that, if a process server were to hand to a licensee notice first and then a summons and complaint containing the same factual information seconds later, the notice requirement would be satisfied. This would be an absurd triumph of form over substance, and we must presume that the legislature did not intend such a result. See id. § 645.17(1) (2002).

Diamonds in turn argues that the district court’s construction of the statute renders the notice requirement ineffective and superfluous. Diamonds maintains that, if the notice requirement can be satisfied by service of the complaint, the requirement serves no purpose. But service of a complaint that neither communicates the statutorily required facts giving rise to the dram-shop claim nor reaches the licensee within the prescribed time period would not satisfy the statute. Also, if an attorney is hired immediately after an injury, the attorney must still serve notice within 240 days after beginning the representation, even though the dram-shop action does not have to be commenced for more than a year later. Thus, the district court’s interpretation of the notice provision does not render the provision ineffective.

We therefore conclude that service of a complaint that contains the information described in section 340A.802, subdivision 1, within the 240-day specified in section 340A.802, subdivision 2, satisfies the dram-shop notice requirement.

The district court also concluded that Wood “substantially complied” with the notice requirement, at least to the extent that her service of the complaint communicated to Diamonds the information described in section 340A.802, subdivision 1. Because we agree with the district court’s interpretation of the statute — which allows the notice requirement to be satisfied by service of a complaint — we decline to address whether Wood “substantially complied” with the statute.

III.

Both parties raise the issue of whether Diamonds had actual notice of Wood’s dram-shop action. The statute provides that “[a]ctual notice of sufficient facts reasonably to put the licensee * * * on notice of a possible claim complies with the notice requirement.” Id. § 340A.802, subd. 2. Although the parties presented this issue to the district court, the court declined to address it because the court found that service of the complaint satisfied the notice requirement. Because the issue was not decided by the district court, and in light of the limited record at this stage of the proceedings, we decline to' address whether Diamonds had actual notice of Wood’s potential dram-shop claim. See Thiele v. Stich 425 N.W.2d 580, 582 (Minn.1988).

DECISION

The district court did not err in its construction of the dram-shop notice statute.

Affirmed; motion granted.


author: MINGE, Judge.

text:
    In re the ESTATE OF David W. RIGGLE.
    No. C0-02-606.
    Court of Appeals of Minnesota.
    Dec. 24, 2002.

      Kay Nord Hunt, Lommen, Nelson, Cole & Stageberg, Minneapolis, MN, Leslie A. Anderson, Brooklyn Center, MN, for appellant.
    Dennis W. Schurman, Detroit Lakes, MN, for respondent.
    Considered and decided by MINGE, Presiding Judge, WILLIS, Judge, and WRIGHT, Judge.,
   OPINION

MINGE, Judge.

The respondent filed a petition in an intestate probate proceeding claiming the homestead plus her elective share in decedent’s augmented estate. The appellant objected claiming that decedent had abandoned the homestead occupied by respondent and that the residence was part of the augmented estate. In addition, the appellant argued that even if the parcel of real estate on which the residence was located was decedent’s homestead, a second adjacent parcel was not included in the homestead and was part of the augmented estate. The district court determined that decedent’s homestead included both parcels. This appeal was filed pursuant to Minn.Stat. § 525,71, subd. 6 (2002) and Minn.Stat. § 525.712 (2002). We affirm.

FACTS

Decedent David Riggle died intestate in February 2001 as a result of injuries suffered in a one-vehicle accident. His widow, Ritá J: Riggle, and their two minor children survive him. Decedent’s widow is the respondent in this case. Appellant, Vivian Holmer, is decedent’s mother who is the named beneficiary of a $200,000 life insurance policy that decedent owned at the time of his death.

Decedent and respondent, as joint ten■ants, bought a 20-acre parcel of land in rural Princeton, Minnesota. They built and lived in a home on this parcel (improved parcel). Approximately three months after purchasing the improved parcel, decedent bought the adjoining 25 acres in his own name (vacant parcel). The western and southerly boundaries of the improved parcel border the vacant parcel. Respondent testified that she and decedent hunted on the vacant parcel, that they cut their Christmas trees from the vacant parcel, and that she believed that part of the driveway for the residence was located on the vacant parcel.

In 1999, decedent and respondent separated and decedent moved out of the family home. In February 2000, respondent commenced marriage dissolution proceedings.- After moving out of the family home, decedent initially lived in Dakota County; in the summer of 2000, decedent rented a house in Cambridge, Minnesota with a lease that ran until the spring of 2001. In December 2000, decedent and respondent placed their dissolution on inactive status and began a reconciliation. However, decedent continued to use the Cambridge house. He spent several nights per week there, kept most of his personal effects there, used that home as an office, received most of his mail there, and had a female friend who apparently spent several nights a week there. At the same time, decedent spent two to three nights per week with respondent at the rural Princeton home. Decedent claimed the Princeton home as his homestead for purposes of real estate taxes, kept a few items of personal property and personal effects at the rural Princeton home, did not change his voter registration or driver’s license to a site other than the Princeton home, and received a limited amount of mail at the Princeton address.

Decedent’s true intentions are unclear. Respondent 'testified that decedent was telling her and their children that he intended to reside at the Princeton home and that they would be a family again. In an affidavit submitted to the district court, the owner of the Cambridge property stated that decedent had told him he wished to purchase the Cambridge house. A hunting friend of the decedent provided an affidavit stating that decedent had told him that he planned to divorce his wife and purchase the Cambridge property. Respondent claimed that she did not learn until after decedent’s death that he was less than honorable in his relationship and dealings with her during what she believed was a reconciliation. She was somewhat bitter about his double life and indicated that she would not have agreed to decedent spending nights with her and their children if she knew he was not sincere about the reconciliation.

At the time of his death, decedent had entered into a purchase agreement to sell the vacant parcel adjacent to the homestead. Although a signature purporting to be respondent’s appears on the purchase agreement, respondent claims that she was unaware of the planned sale and that her signature was forged. A handwriting expert opined the signature belonged to respondent. After decedent’s death, this purchase agreement lapsed.

The significant assets in decedent’s estate are his interests in the vacant and improved parcels of land in the Princeton area, various personal effects, and the $200,000 life insurance policy. The question before the district court was whether the Princeton land was decedent’s homestead. If it was decedent’s homestead, it would pass to respondent separate from the rest of decedent’s estate. If the land was not decedent’s homestead, the Princeton land would become part of the augmented estate. The district court found that decedent had not abandoned the Princeton homestead and that the homestead included the unimproved parcel.

ISSUES

1. Was the determination of the district court that decedent did not abandon his Princeton homestead an abuse of discretion?

2. Was the vacant parcel adjacent to the residence part of the homestead?

3. Can respondent supplement the record with extra documents?

ANALYSIS

Homestead property is excluded from the augmented estate and descends free from testamentary or other disposition. Minn.Stat. §§ 524.2-204, .2-402 (2002). The district court’s determinations that the decedent did not abandon the homestead and that both parcels constituted the homestead were legal conclusions based upon the district court’s findings of fact. Appellant challenges both the district court’s findings and the district court’s resulting conclusions of the law.

I.

The first issue is whether the decedent abandoned his Princeton homestead so that its value should be included in computing the augmented estate. If he did abandon his homestead, respondent as the widow will receive this property as a part of the augmented estate under the formula that provides for the election of the surviving spouse. If the decedent did not abandon the Princeton home, respondent as the widow will receive the homestead outright, and in addition, she will receive that portion of the augmented estate to which she is entitled. The augmented estate will include the insurance policy of which appellant is the named beneficiary. Thus, the finding of whether the homestead was abandoned will affect the total property interest to which respondent as the widow succeeds in this probate proceeding.

The determination of whether a homestead has been abandoned is a mixed question of law and fact. When reviewing mixed questions of law and fact, this court corrects erroneous applications of the law, but accords the district court discretion in its findings of fact and ultimate conclusions. Rehn v. Fischley, 557 N.W.2d 328, 333-34 (Minn.1997); Maxfield v. Maxfield, 452 N.W.2d 219, 221 (Minn.1990). This court does not reweigh the evidence presented to a district court. Matter of Salkin, 430 N.W.2d 13, 16 (Minn.App.1988) (finding the function of the appellate court is to determine if the evidence as a whole sustains the trial court’s findings), review denied (Minn. Nov. 23,1988).

Probate law uses the term homestead prominently. It is especially important in determining the rights of the surviving spouse and children. However, the probate code does not define the term homestead or what constitutes abandonment of the homestead. Instead, Minnesota courts have looked to the legal principles in the debtor-creditor area for guidance. See, e.g., Cleys v. Cleys, 363 N.W.2d 65, 70 (Minn.App.1985) (applying homestead definition from Minn.Stat. § 510.01 in a probate proceeding despite objection that it should not be so applied because of its “debtor protection view”). The definition of the homestead from the Homestead Exemptions Chapter of the Minnesota Statutes is as follows:

The house owned and occupied by a debtor as the debtor’s dwelling place, together with the land upon which it is situated * * * shall constitute the homestead of such debtor and the debtor’s family.

Minn.Stat. § 510.01 (2002). The surviving spouse and children have an emotional attachment to their home and a strong economic interest in either its continued occupancy or its availability as an asset. See Tomlinson v. Kandiyohi County Bank, 162 Minn. 230, 234, 202 N.W. 494, 495 (1925) (noting the homestead exemption “is not alone for the husband and his protection but for the benefit of the wife and the children as well”). Neither the decedent, nor creditors, nor other claimants should be able to defeat these interests or expectations unless the laws and principles governing the protection of the homestead are met. Denzer v. Prendergast, 267 Minn. 212, 216, 126 N.W.2d 440, 443 (1964); Jensen v. Christensen, 216 Minn. 92, 95, 11 N.W.2d 798, 799 (1943); Tomlinson, 162 Minn. at 230, 202 N.W. at 494; cf. Rux v. Adam, 143 Minn. 35, 172 N.W. 912 (1919). Courts are to liberally construe homestead laws. Denzer, 267 Minn. at 216, 126 N.W.2d at 444; Jensen, 216 Minn. at 95, 11 N.W.2d at 799.

The question of abandonment of homestead in the context of probate is one of first impression for this court. In the debtor-creditor context Minnesota law provides:

If the owner dies leaving a spouse or minor children constituting the owner’s family surviving, the homestead exemption shall not be affected by the death. If the owner shall abscond, or otherwise desert the family, the spouse and the minor children comprising the family may retain the homestead, with all the rights of the owners therein.

Minn.Stat. § 510.06 (2002).

Case law indicates that abandonment of a homestead has two basic components: cessation of occupancy and lack of an intent to return. In Vickery v. First Bank of LaCrosse, 368 N.W.2d 758 (Minn.App.1985), review denied (Minn. Aug. 20, 1985), this court stated: “Once a homestead right is established, the burden of proof shifts to the creditor to establish abandonment thereof by clear and convincing evidence.” Id. at 763. In Vickery, the court went on to determine that absence from the homestead for a period of one year with little apparent intent to return was not adequate to meet the clear and convincing evidence requirement for abandonment. Id. at 764. It was important to the court that the wife apparently had a stronger attachment than the husband to the residence at issue. Id. That the husband had not established another domicile was also a factor in the court’s analysis. Id. at 765; cf. Donaldson v. Lamprey, 29 Minn. 18, 11 N.W. 119 (1881) (finding owner could not continue to claim property as homestead when he had acquired a new residence and homestead in another county). Other decisions echo this strong support for the homestead protection. See, e.g., In re Estate of Van Den Boom, 590 N.W.2d 350, 353 (Minn.App.1999) (noting, in interpreting probate code provision, “The homestead exemption has long been recognized as important in providing a sanctuary for a debtor’s home, notwithstanding the just demands of creditors.” (quotation omitted)), review denied (Minn. May 26, 1999); Gordon v. Emerson-Brantingham Implement Co., 168 Minn. 336, 339, 210 N.W. 87, 88 (1926). In one opinion the supreme court stated:

Abandonment of a homestead results when the owner removes therefrom and ceases to occupy the same, with the intention of never returning or with no intention of returning thereto to reside.

In re Hickman, 222 Minn. 161, 168, 23 N.W.2d 593, 597 (1946) (quotation omitted). Prior to Hickman, the Minnesota Supreme Court determined that an intention to move from the homestead is not enough to constitute abandonment; there must also be “an actual removal from the premises.” Millett v. Pearson, 143 Minn. 187, 189, 173 N.W. 411, 412 (1919).

Indeed, courts have given a surviving spouse an election as to whether she claims as a homestead the marital residence which the departing spouse has left or the new one which he has established. See Rux, 143 Minn. at 35, 172 N.W. at 912 (Indiana spouse traces husband to Renville County and then to Marshall County and successfully claims homestead in 80 acres of land owned by husband against the interests of new common law wife who had six children with decedent); cf. St. Denis v. Mullen, 157 Minn. 266, 196 N.W. 258 (1923).

Appellant places great weight on respondent’s admission that the decedent may have been lying to her about reconciling and being a family again. However, .respondent only spoke with candor about possibly being deceived. She did not know the decedent’s true intent. Perhaps he would have abandoned the paramour if forced to choose.

To determine the decedent’s intent, we look to decedent’s conduct, not merely decedent’s declarations. Gordon, 168 Minn. at 340, 210 N.W. at 88 (“A man’s intentions are not necessarily fixed by what he may declare them to be. They are determined by his conduct.” (quotation omitted)). From the facts, it appears that decedent was of two minds. He continued to spend several nights per week at the family home and continued to keep certain items of personal property there. To grant appellant the outcome she seeks would require that we reverse the district court and that we reject the possibility that decedent would ultimately have stayed with respondent. In light of the public policy of supporting the family unit and protecting the homestead for the benefit of the family, we are not prepared to overrule the district court and to reject that possibility. There is no showing that decedent left the Princeton home with no intent to ever return. We conclude that the district court did not abuse its discretion; decedent’s actions were not clear and convincing evidence of an abandonment of the homestead. We affirm the district court’s ruling that the Princeton property was decedent’s homestead.

II.

The second issue is whether the vacant parcel is part of the homestead and is, therefore, exempt from the augmented estate. Appellant argues that the vacant parcel should not be considered part of the homestead because it was purchased separately, was titled in the decedent’s name alone, is unimproved, was not essential to the use and enjoyment of the improved parcel, and was in the process of being sold at the time of his death. Respondent argues that the vacant parcel is homestead property because it adjoins the improved parcel on two sides, was used by the family occasionally, was often the source of the family’s Christmas trees, and contained part of the driveway to the family home.

In this part of the instant case, we consider the district court’s application of the law to undisputed facts. In this setting, a reviewing court need not defer to the district court’s application of the law to material facts which are not in dispute. Hubred v. Control Data Corp., 442 N.W.2d 308, 310 (Minn.1989).

In undeveloped areas, the homestead may be up to 160 acres. Minn. Stat. § 510.02 (2002). Minnesota law is clear that the homestead is not limited to the dwelling and the immediately surrounding land but extends to farmland and business-use property. O’Brien v. Johnson, 275 Minn. 305, 310, 148 N.W.2d 357, 361 (1967); Stauning v. Crookston Mercantile Co., 134 Minn. 478, 478, 159 N.W. 788, 788 (1916). A person’s homestead may include more than one parcel. The test to determine whether the additional parcels are part of the homestead is set forth in Brixius v. Reimringer, 101 Minn. 347, 112 N.W. 273 (1907). In Brixius, the Minnesota Supreme Court held that two parcels, touching only at the corners, could be treated as one parcel for homestead purposes. Brixius, 101 Minn. at 348-49, 112 N.W. at 273-74. The Brixius court noted:

The essential thing to constitute a quantity of land within the homestead law is that it shall be occupied and cultivated as one piece or parcel of land, on some part of which is located the residence. This object is accomplished when two parcels touch at the corners, provided the essential conditions to constitute a homestead exist.

Id. We note that the Brixius test does not preclude homestead treatment for both parcels simply because one parcel was owned in joint tenancy and one parcel was not. The test from Brixius focused on occupation and cultivation, not on the form of ownership.

Mixed use does not preclude homestead treatment for the parcels. See, e.g., Wilson v. First Nat’l Bank, 239 Minn. 550, 552, 60 N.W.2d 69, 70 (1953) (finding an owner who lives in a building may exempt the entire building even if he leases portions of the premises to others). Farmers may allocate portions of their homestead property for their home and portions of their property for farming. In the case of Rux v. Adam, the decedent owned 120 acres at a time when Minnesota law allowed for an 80 acre homestead. 143 Minn. 35, 172 N.W. 912 (1919). The court without difficulty and without controversy among the parties recognized that the fields were homestead property for purposes of the spousal election even though the buildings were only in one area of the larger homestead. Rux, 143 Minn. at 38-39,172 N.W. at 913-14.

The parcels in this case are even more connected than the parcels in the Brixius case. While the parcels in the Brixius case touched only at the corners, the parcels in this case share two borders. Respondent testified that she and decedent treated the two parcels as one parcel. There is no business use. A portion of the property was allocated for the home, and a portion of the property was allocated for recreational or leisure use. We conclude the vacant parcel and the improved parcel constitute the homestead of decedent and we affirm the district court’s determination in this respect.

III.

Appellant brought a motion to strike four documents, including a letter, agriculture receipts, and tax returns from the appendix of respondent’s brief because the documents were not submitted to the trial court, and as such are outside the record on appeal. Minn. R. Civ.App. P. 110.01. Respondent concedes the documents at issue were no’t submitted to the trial court but argues that they should be considered because they are conclusive and can be used to support the district court’s decision. Appellant argues that the court should strike the documents because they are not conclusive on the issue of whether the property in question was decedent’s homestead and they are not self-authenticating.

Generally, the court strikes documents in a party’s brief that are not part of the appellate record. Fabio v. Bellomo, 489 N.W.2d 241, 246 (Minn.App.1992), aff'd, 504 N.W.2d 758 (Minn.1993). But, “ ‘[A]ppellate courts, in order to sustain verdicts and judgments, will permit omissions to be supplied by documentary evidence of a conclusive nature.’ ” Chahla v. City of St. Paul, 507 N.W.2d 29, 33 (Minn.App.1993) (quoting Mattfeld v. Nester, 226 Minn. 106, 123, 32 N.W.2d 291, 303-04 (1948)), review denied (Minn. Dec. 14,1993).

Appellant is correct that the documents at issue do not fit within the Mattfeld exception. In Mattfeld, the court commented:

Courts, both trial and appellate, in order to prevent the miscarriage of justice resulting from a retrial, for the purpose of proving a fact the existence of which can be conclusively established by an indisputable and incontrovertible document, have the power to reopen the case to receive such proof even after verdict, and will exercise the power to sustain a verdict or judgment where the omission was caused through inadvertence or mistake of counsel for the prevailing party in failing to offer the proof upon the trial.

226 Minn. at 122, 32 N.W.2d at 303. Although the documents in this case are offered in support of the district court’s decision, they largely duplicate respondent’s testimony at the evidentiary hearing. Since the documents are not necessary to establish that the property at issue was decedent’s homestead, and since we generally decline to allow the record to be supplemented on appeal, we strike the documents.

DECISION

The district court correctly determined that the decedent did not abandon the Princeton home that he occupied with respondent and their children and that the Princeton homestead consisted of both the improved and unimproved parcels. We strike from the record on appeal those documents offered by the respondent that were not in the record before the district court.

Affirmed; motion granted.


author: MINGE, Judge

text:
    STATE of Minnesota, Respondent, v. Charles Edward LINDSEY, Appellant.
    No. C5-02-195.
    Court of Appeals of Minnesota.
    Dec. 27, 2002.

      Mike Hatch, Attorney General, St. Paul, MN; and Doug Johnson, Washington County Attorney, John W. Fristik, Assistant County Attorney, Stillwater, MN, for respondent.
    ■ John M. Stuart, State Public Defender, Steven P. Russett, Assistant State Public Defender, Minneapolis, MN, for appellant.
    Considered and decided by LANSING, Presiding Judge, SHUMAKER, Judge, and MINGE, Judge.
   OPINION

MINGE, Judge

On appeal from a conviction of first-degree assault of a correctional employee, appellant argues that the trial court committed plain error by instructing the jury that the state did not need to prove that he intended to infliet great bodily harm. Appellant also argues that the court erred by imposing a 20-year sentence when the presumptive sentence was 10 years. We affirm in part and modify in part.

FACTS

A jury convicted appellant Charles Lindsey of assaulting correctional officers Jeff Warren and Grace Morton. The evidence at trial established that on April 30, 2000, Warren and Morton were assigned to Complex 1, one of several living units within the prison where appellant was serving a life sentence. At about 8:00 a.m., inmates began moving from the complex into the main prison yard for a recreation period. Before entering and leaving the yard, inmates are required to pass through a metal detector. When appellant passed through the metal detector, the alarm sounded. Warren stopped appellant and told him to go back through the metal detector. Appellant told Warren the alarm went, off because appellant was wearing a metal knee brace. Warren asked appellant to remove the brace and then pass through the detector. After arguing with Warren,, appellant removed his brace and passed through the detector without activating the alarm.

When appellant returned from the hour-long recreation period, he set off the metal detector alarm again. When Warren instructed appellant to remove the brace and go through the metal detector, appellant said “what?” in a loud voice and then hit Warren in the head. Warren was unconscious and next recalled lying on the ground and seeing appellant’s foot coming down toward his face. Warren recalled trying to block the foot with his arm and then losing consciousness again.

Officer Morton was in the supply room when she heard a commotion near the metal detector. Morton ran around the corner and saw appellant punching and kicking Warren. Morton yelled at appellant to stop and ordered him to return to his cell. Appellant turned and hit Morton on the side of her head. He then continued hitting and kicking Warren in the head and torso. When Morton attempted to intervene a second time, appellant punched her in the chest.

The officer working in the security bubble observed the incident and called for assistance. According to that officer, appellant would walk away from Warren but return and continue the assault whenever Warren started to move. As other correctional officers converged on the scene, appellant stopped his assault on Warren and waited to be taken into custody. Appellant eventually returned to his cell and was then escorted to a different complex.

Warren and Morton were taken to Lakeview Hospital in Stillwater and examined by Dr. Gene Stringer. Morton’s injuries included a cut and swelling to her ear and bruises on her chest. She was discharged with instructions to rest and take pain medication as needed. Morton missed about seven weeks of work.

According to Dr. Stringer, Warren was oriented and recollected being assaulted. He had a black eye, bruises on his face, arms and hands, and swelling to his neck and throat. A CT scan showed a possible fracture to the cricoid cartilage in Warren’s trachea. Because Warren’s airway was not compromised, Stringer did not admit Warren to the hospital. Stringer gave Warren medication to control the swelling and recommended he see an oto-laryngologist the next day.

Otolaryngologist Bruce Dennison examined Warren the next day and determined that Warren had in fact suffered a fracture of the cricoid cartilage. Because the lining of Warren’s windpipe had not been compromised, Dennison was able to conservatively treat the injury. Dennison told Warren to avoid excessive physical activity and monitored his progress over the next several weeks. Five months later, Warren returned to work part-time.

Dennison testified that Warren was “fortunate he was not killed.” He explained that an injury like that suffered by Warren can cause swelling or bleeding and is “po-téntially lethal.” In Dennison’s professional opinion, Warren’s injury created “a substantial risk of death or bodily harm,” although Dennison acknowledged that risk never materialized. He testified that the injury to Warren’s throat could have been inflicted by a fist or foot.

With regard to Officer Warren, the state charged appellant with first-degree assault of a correctional employee and third-degree assault resulting in substantial bodily harm. The state charged appellant with fourth-degree assault of a correctional officer resulting in demonstrable bodily harm for the assault of Morton. At trial, appellant conceded he was guilty of a fourth-degree assault but argued that the state had not proven that he used deadly force against Warren. The jury found appellant guilty of all three charges. The court sentenced appellant to a 20-year prison term for first-degree assault and a consecutive year-and-a-day prison term for fourth-degree assault. Both sentences were consecutive to the life sentence appellant was already serving.

ISSUES

1. Was the jury instruction on intent improper and, if so, is there a reasonable likelihood that the error in the instruction had a significant effect on the jury verdict?

2. Did the 20-year sentence exceed the presumptive sentence and, if so, was the sentence supported by significant aggravating circumstances?

ANALYSIS

I.

Appellant argues the court incorrectly instructed the jury. Specifically, appellant argues the trial court’s comment on great bodily harm misstated the law, misled the jury, and requires a new trial.

Appellant did not object to the jury instruction at trial, so this court may only reverse if the instruction was misleading or confusing on fundamental points of law. State v. Butler, 295 N.W.2d 658, 659 (Minn.1980). This court may consider a plain error not previously brought to the attention of the trial court if the error affects substantial rights. Minn. R.Crim. P. 31.02. To establish plain error, an appellant must show that a trial court’s ruling (1) was error; (2) that the error was plain; and (3) that the error affected appellant’s substantial rights. State v. Griller, 583 N.W.2d 736, 740 (Minn.1998).

A jury instruction is in error if it materially misstates the law. State v. Pendleton, 567 N.W.2d 265, 268 (Minn.1997). Jury instructions must be viewed in their entirety to determine whether they fairly and adequately explain the law of the case. State v. Flores, 418 N.W.2d 150, 155 (Minn.1988). District courts are allowed considerable latitude in the selection of language for jury instructions. Alholm v. Wilt, 394 N.W.2d 488, 490 (Minn.1986). But jury instructions must define the crime charged, and the court should explain the elements of the offense rather than simply read the statute. Rosillo v. State, 278 N.W.2d 747, 749 (Minn.1979).

Appellant was charged with first-degree assault for the use of deadly force against a peace officer or correctional employee. This part of the first-degree assault statute provides:

Whoever assaults a peace officer or correctional employee by using or attempting to use deadly force against the officer or employee while the officer or employee is engaged in the performance of a duty imposed by law, policy, or rule may be sentenced to imprisonment for not more than 20 years or to payment of a fine of not more than $30,000, or both.

Minn.Stat. § 609.221, subd. 2(a) (1998). This part of the first-degree assault statute also incorporates by reference the definition in Minn.Stat. § 609.066, subd. 1 (1998), which states that deadly force is

force which the actor uses with the purpose of causing, or which the actor should reasonably know creates a substantial risk of causing, death or great bodily harm.

Minn.Stat. § 609.221, subd. 2(c)(2) (1998).

To be guilty of using deadly force against a peace officer or correctional employee, a defendant must have the requisite mental state. The definition of deadly force uses two alternative phrases specifying the mental state. The first is “with the purpose of causing.” This is actual intent. Compare Minn.Stat. § 609.066, subd. 1 and Minn.Stat. § 609.02, subd. 9 (1998). The second mental state is found in the phrase “the actor should reasonably know creates a substantial risk of causing, death or great bodily harm.” Minn.Stat. § 609.066, subd. 1. This is imputed knowledge. Thus, in a prosecution under Minn. Stat. § 609.221, subd. 2 (1998), the state must prove either that the defendant intended to cause great bodily harm or that the defendant reasonably should have known he created a substantial risk of causing great bodily harm. We have previously recognized this approach to mens rea. See State v. Ortiz, 626 N.W.2d 445, 450 (Minn.App.2001) (framing question of whether defendant committed first degree assault as “whether the evidence supports a finding that Ortiz used force by which he either intended to, or should reasonably have known would” cause great bodily harm), review denied (Minn. June 27, 2001).

In this case, the court instructed the jury that the prosecution had to prove

the defendant used, or attempted to use, deadly force against Jeffrey Warren. ‘Deadly force’ means force that the actor uses with the purpose of causing or the actor should reasonably know creates a substantial risk of causing death or great bodily harm. ‘Great bodily harm’ means bodily harm that creates a high probability of death, causes serious permanent disfigurement, or causes a permanent or protracted loss or impairment of the function of any part of the body, or other serious bodily harm. It is not necessary for the state to prove that defendant intended to inflict great bodily harm, but only that defendant intended to commit the assault.

Appellant argues the last sentence, which provides that the prosecution did not have to prove that defendant intended to inflict great bodily harm, misstated the law.

The relatively new jury instruction on the charge of first-degree assault of a correctional employee tracks the language of the statute for first-degree assault of a correctional employee. 10 Minnesota Practice, CRIMJIG 13.06 (1999). However, the last sentence of the instruction used by the district court in this case picks up part of the pattern jury instruction for the similar but different crime of general first-degree assault. See 10 Minnesota Practice, CRIMJIG 13.04 (1999). The language in the pattern jury instruction that provides that the state does not have to prove intentional infliction of great bodily harm is based on Johnson v. State, 421 N.W.2d 327 (Minn.App.1988). See 10 Minnesota Practice, CRIMJIG 13.04 (1999). In Johnson, this court addressed the definition of assault and the wording of Minn.Stat § 609.221, subd. 1. Johnson, 421 N.W.2d at 330. We held that Minn. Stat. § 609.221, subd. 1, does not require intent to inflict great bodily harm. Johnson, 421 N.W.2d at 331.

The offense at issue in this case is first-degree assault of a correctional employee. As compared to assault in the first degree, first-degree assault of a correctional employee requires the use of deadly force which, as just observed, incorporates by reference the alternative mental states from Minn.Stat. § 609.066, subd. 1. Johnson did not address the alternative mental states of Minn.Stat. § 609.066, subd. 1. If a district court determines that it is important to explain imputed knowledge to the jury, it should fashion language that focuses on whether the actor reasonably knew death or great bodily harm would result rather than use the sentence from the first-degree assault instruction that is based on Johnson. The question for the jury in an imputed-knowledge case is whether, in looking at all the facts and circumstances in the case, the person committing .the acts should reasonably have known that those acts created a substantial risk of causing death or great bodily harm. Johnson is correct; actual intent is not needed. The test of guilt in this case, however, is a reasonable person standard as to risk or foreseeability of outcome. In this case, the use of Johnson inspired part of the jury instruction, without more, was misleading because it emphasized what was not required of the state instead of explaining what the state had to prove to establish guilt.

The plain-error test in the Gril-ler case is not easily applied in this setting. It was error to use the wrong jury instruction. In this limited sense the first prong of the Griller test is met. The second prong of Griller requires" that the error was plain. Griller, 583 N.W.2d at 740-41. To satisfy the second prong “it is sufficient that the error is plain at the time of the appeal.” Id. at 741. For purposes of plain error, “ ‘[p]lain’ is synonymous with ‘clear’ or, equivalently, ‘obvious.’ ” United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 1777, 123 L.Ed.2d 508 (1993) (citations omitted). In this case, the error is clear or plain if one assumes pattern jury instructions are narrow mandates. But trial courts have discretion to fashion instructions. In looking at the two first-degree assault crimes and our Johnson decision, it may be a difference without a significant substantive distinction. The critical analysis is the third prong of the three-part test.

Griller’s third prong requires that the error affected appellant’s substantial rights. Griller, 583 N.W.2d at 741. This prong is satisfied if the error was prejudicial and affected the outcome of the case. Id. Plain error is prejudicial if there is a “reasonable likelihood that the giving of the instruction in question would have had a significant effect on the verdict of the jury.” State v. Glidden, 455 N.W.2d 744, 747 (Minn.1990). In this case, appellant conceded to assaulting' the correctional employee, and according to appellant, “the only issue before the jury was whether appellant had the requisite mental state.” That requisite mental state, from the plain meaning of the statute, is whether appellant used such force that he intended to cause, or should reasonably have known would create a substantial risk of causing great bodily harm. Minn.Stat. §§ 609.066, subd. 1, .221, subd. 2; Ortiz, 626 N.W.2d at 450.

It does not appear from the record that the prosecution introduced evidence of appellant’s actual intent at trial. The videotape of the assault was shown to the jury. Based on the stipulated description of the attack in the parties’ briefs, we find that a jury fully instructed on imputed knowledge would have concluded that appellant had the requisite mental state. Appellant should reasonably have known his action would create a substantial risk of causing death or great bodily harm. He inflicted a severe beating on Officer Warren. Based on the nature of the attack, he should have known there was a risk of great bodily harm. This is imputed intent and meets the statutory requirement. See Minn.Stat. § 609.066, subd. 1. Under the circumstances, telling the jury it did not need to find actual intent to inflict great bodily harm was not incorrect and was offset by the part of the instruction that defined deadly force as force the actor uses with the purpose of causing or force the actor should reasonably know creates a substantial risk of causing death or great bodily harm. Although the jury instruction given may have been plain error by emphasizing a lower threshold of proof of mental state, and in some cases could be confusing, it did not adversely affect the appellant’s substantive rights, and we therefore affirm the conviction in this case.

II.

Appellant was sentenced to a 20-year sentence for the assault. The statute provides for a 10-year minimum and a 20-year maximum sentence. The parties agree that sentencing guidelines provide for a 10-year sentence in this case. Appellant argues the 20-year sentence is an improper upward departure from the sentencing guidelines. The state argues the 20-year sentence was a justified departure from the sentencing guidelines because the statute allows for the maximum sentence of 20 years. The state contends the statu-, tory maximum sentence prevails over the sentencing guidelines.

The sentences in the sentencing guidelines are presumed appropriate for every case. Minn. Sent. Guidelines II.D. Sentencing courts should use the presumptive sentence from the sentencing guidelines unless the particular case involves “substantial and compelling circumstances.” State v. Garcia, 302 N.W.2d 643, 647 (Minn.1981); Minn. Sent. Guidelines II.D. If the trial court finds that aggravating or mitigating circumstances are present, however, the trial court has broad discretion to depart from a presumptive sentence. State v. Best, 449 N.W.2d 426, 427 (Minn.1989). A reviewing court should overturn only when the trial court exceeds its discretion in setting the sanction. State v. Schantzen, 308 N.W.2d 484, 487 (Minn.1981).

“[I]f no reasons for departure are stated on the record at the time of sentencing, no departure will be allowed.” Williams v. State, 361 N.W.2d 840, 844 (Minn.1985). If reasons for departure are stated, the reviewing court must examine the record to determine if the reasons given justify the departure. Id. at 844. If the reasons are improper or inadequate, but there is sufficient evidence in the record to justify departure, the departure should be affirmed. Id.

The ' analysis of an appellant’s challenge to an upward departure begins with a focus on appellant’s conduct. State v. Valentine, 630 N.W.2d 429, 435 (Minn.App.2001), review denied (Minn. Aug. 22, 2001).

As set forth by the Minnesota Supreme Court, a sentencing court’s durational departure is justified if a defendant’s ‘conduct somehow may be said to be significantly more serious than typically involved in the commission of the charged offense.

State v. Valentine, 630 N.W.2d at 435-36 (quoting State v. Best, 449 N.W.2d at 427.)

At the sentencing hearing in this case, the prosecutor informed the judge that the sentence, according to Minn.Stat. § 609.221, subd. 2, could be anywhere between 10 years and 20 years. The judge imposed the 20-year (240 month) sentence and commented:

Court’s going to the max on the statute. I don’t think this is a departure. * * * I remember the trial; I observed it on the videotape. This was a brutal, senseless beating of these two correction officials for absolutely no justification whatsoever. * *' * I don’t know, he lost it, and he brutally beat these two people without any warning whatsoever. I have no feeling of any kind of compassion for this man whatsoever under these circumstances. So, I’m going to sentence him to the statute maximum, 240 months on that charge, 240.

Appellant argues that the sentencing judge’s statements should not be construed as stated reasons for a departure because the judge did not believe he was departing. Alternatively, appellant argues that if the judge’s statements are considered reasons for departure, they are insufficient.

The sentencing judge commented on the senseless and unjustified nature of the assaults as well as the overall brutality of the assaults. While the brutality of an assault can be considered in making an upward sentencing departure, the brutality must be significantly more serious than conduct typically involved in that type of assault. See State v. Felix, 410 N.W.2d 398 (Minn.App.1987) (imposing double the presumptive sentence where the “assault was particularly vicious and torturous in that the victim lost consciousness early and repeatedly was beaten by the defendant”), review denied (Minn. Sept. 29, 1987).

Appellant assaulted the correctional employee by punching and kicking him. That conduct is not significantly more serious than conduct typically involved in first-degree assault. Though we agree with the sentencing judge that this assault was senseless, unjustified, and brutal, we also agree with appellant that by its very definition, any first-degree assault involving deadly force is senseless, unjustified, and brutal. Those factors have already been accounted for in the statute and sentencing guidelines.

It is not clear that the sentencing judge was attempting to state reasons for a departure. Because the conduct in this case is common to assaults of this severity, it does not support such a departure, and we need not determine whether the sentencing judge failed to state any reasons for a departure or whether the sentencing judge stated insufficient reasons for a departure.

The state argues the sentence in this case is not a departure from the sentencing guidelines because Minn.Stat. § 609.221, subd. 2, allows for a maximum sentence of 20 years. The state contends the statute takes precedence over the 10-year presumptive sentence. The state cites State v. Rachuy and State v. Halvorson to support its argument. State v. Rachuy, 502 N.W.2d 51 (Minn.1993); State v. Halvorson, 506 N.W.2d 331 (Minn.App.1993). The state appears to be arguing that any time a statute has a maximum sentence that is longer than the presumptive sentence, the sentencing judge may elect to impose the maximum sentence. Halvorson and Rachuy do not support this proposition. In both cases, the court had specific statutory authority to impose a sentence greater than the presumptive sentence even in the absence of substantial and compelling circumstances. Rachuy, 502 N.W.2d at 52; Halvorson, 506 N.W.2d at 338-39. The statute at issue in this case, Minn.Stat. § 609.221, subd. 2, does not authorize a sentencing judge to impose a sentence greater than the presumptive sentence absent significant aggravating circumstances. Accordingly, we do not find the state’s argument persuasive. We modify appellant’s sentence to the 10-year presumptive sentence.

DECISION

Because appellant cannot meet the third prong of the Griller plain-error test, we affirm his conviction. Because the sentencing judge made an improper upward departure, we modify the sentence to the 10-year maximum sentence provided for in the sentencing guidelines.

Affirmed as modified.

      . The incident was recorded by a camera in the complex. The videotape was introduced as an exhibit at trial and shown to the jury.