author: SNELL, Justice.

text:
    Mary M. RIEFF, Individually and on Behalf of a Class of Policyholders of Allied Mutual Insurance Company, Appellant, v. John E. EVANS, Douglas L. Anderson, Harold S. Evans, Jamie H. Shaffer, James W. Callison, James M. Hoak, Jr., Mark W. Putney, George E. Moore, William J. Hancock, James D. Kirkpatrick, Charles I. Colby, Herschel G. Langdon, Charles F. Morgan, Hardy G. Kuykendall, Walter J. Fayle, and Allied Group, Inc., Appellees, Allied Mutual Insurance Company, Nominal Defendant-Appellee, Nationwide Mutual Insurance Company, Intervenor Defendant-Appellee.
    No. 99-0313.
    Supreme Court of Iowa.
    May 31, 2001.
    As Amended on Denial of Rehearing July 3, 2001.

      Thomas D. Waterman, Robert A. Van Vooren, Terry M. Giebelstein, and Jed E. Brokaw of Lane & Waterman, Davenport, Brad J. Brady, Robert J. O’Shea, and Matthew L. Preston of Brady & O’Shea, P.C., Cedar Rapids, Jason B. Adkins and David L. Kelston of Adkins & Kelston, P.C., Boston, Massachusetts, and Daniel E. Bacine and Leslie Molder of Barrack, Rodos & Bacine, Philadelphia, PA, for appellant.
    David L. Brown and John A. McClintock of Hansen, McClintock & Riley, Des Moines, and Bruce W. Foudree, Michael R. Hassan, Sarah M. Weil, and John F. Kloecker of Lord, Bissell & Brook, Chicago, IL, for appellees-directors of Allied Mutual Insurance Company.
    Glenn L. Smith of Finley, Alt, Smith, Scharnberg, Craig, Hilmes & Gaffney, P.C., Des Moines, and J. William Koegel, Jr. of Steptoe & Johnson, Washington, DC, for appellee-Allied Group, Inc.
    Douglas E. Gross and Harold N. Schneebeck of Brown, Winick, Graves, Gross, Baskerville, and Schoenebaum, P.L.C., Des Moines, and Michael A. Reiter, Frederick R. Ball, and Raquel daFonseca of Duane, Morris & Heckscher, L.L.P., Chicago, IL, for appellee-Nationwide Mutual Insurance Company.
    Tom Riley and Hugh G. Albrecht of Tom Riley Law Firm, P.L.C., Cedar Rapids, Paul Alan Levy of Public Citizen Litigation Group, Washington, DC, and Theresa Amato of Citizen Advocacy Center, Elmhurst, IL, amicus curiae for Public Citizen, the Citizen Advocacy Center, the Coalition for Consumer Rights, and the Consumer Federation of America.
    Bruce L. Braley of Dutton, Braun, Staack & Heilman, P.L.C., Waterloo, ami-cus curiae for the Iowa Trial Lawyers Association.
    John M. (Jack) Manders of Drake University, amicus curiae as a professor.
    Fred M. Haskins of Patterson Law Firm, Des Moines, amicus curiae for the Iowa Insurance Institute.
    A. John Frey, Jr. of Frey, Haufe & Current, P.L.C., Clinton, amicus curiae for the National Association of Mutual Insurance Companies.
    Russell L. Samson of Dickinson, Macka-man, Tyler & Hagen, P.C., Des Moines, amicus curiae for the Iowa Association of Business and Industry.
   SNELL, Justice.

A group of policyholders, represented by Mary M. Rieff, appeal the dismissal of their lawsuit against two insurance companies and numerous individual defendants who were or are directors of Allied Mutual Insurance Company (Mutual). The defendants also include Allied Group, Incorporated (Group). Mutual is a nominal defendant and Nationwide Mutual Insurance Company (Nationwide) is an intervenor defendant. A motion to dismiss the lawsuit was filed by the defendants. The district court sustained the motion to dismiss holding that the policyholders lacked standing to proceed with the lawsuit and the suit was barred by a statute of limitations. We reverse the dismissal of the policyholders’ suit in part and remand for further proceedings.

I. Background Facts and Proceedings This appeal is from a case with many issues, parties, attorneys, claims, counts, and legal theories. Initially, the suit was brought on behalf of a mutual insurance company by its policyholder under the theory of a shareholder’s derivative suit, As we stated in Weltzin v. Nail:

A derivative lawsuit is unique in that the shareholders allege the company’s directors have directly harmed it by their acts and omissions such that the company has suffered a loss. The shareholders indirectly assert their rights through the rights of the company.

Weltzin v. Nail, 618 N.W.2d 293, 295 (Iowa 2000). Later, the0 suit was amended to include class action claims brought individually by the policyholders. The policyholders allege a claim of “de facto demutu-alization” or “de facto conversion” under this action. The main thrust of both actions is that the directors of Mutual, through their association with Group, committed several breaches of duties for which the policyholders and the company itself are owed compensation. Below are the facts alleged by the policyholders in their pleading.

Allied Mutual Insurance Company incorporated Allied Group, Inc. in 1974. Mutual primarily operated as a private citizen insurer for home and automobile. Group engaged in the casualty and life insurance business. Until 1985, Group was a totally dependent subsidiary of Mutual. Group had no employees of its own, and Mutual provided for all of Group’s services. Many of the directors of Mutual were also the directors of Group. Prior to 1985, Mutual owned 100% of Group’s stock. In 1985, the directors, who are most of the defendants in this proceeding, offered 21% of Group’s stock publicly. Rather than Mutual receiving the benefits of this sale, the proceeds totaling $16.4 million went to Group’s subsidiaries. This transaction began the process that would ultimately result in a role reversal between Mutual and Group.

A pool had always existed between Mutual and Group and its subsidiaries containing the assets, profits, and premiums of their business. Initially, Mutual controlled the pool and Group received 15%. The defendant directors began to slowly increase Group’s share in 1985, first to 38%, in 1987 to 41%, in 1990 to 53%, in 1992 to 60%, and in 1993 to 64%. Thus, in 1985 Mutual received 85% of the benefits from the joint pool, but by 1993 Mutual’s share had decreased to 36%. Finally, in January of 1993, Mutual gave up all control of the pool to a subsidiary of Group for no consideration.

By 1989, all Mutual employees had been reclassified as Group employees, in turn making Mutual completely dependent on Group for its workforce. Eventually, in February of 1993, Mutual sold off all of Group’s remaining common stock, giving up any possibility of sharing in Group’s growth and success. As a result of the sell-off of Mutual’s control to Group, the policyholders allege that the directors have allowed themselves several generous grants since 1985 worth many millions of dollars.

From 1985 to 1993, Mutual slowly restructured itself, which the policyholders allege benefited the individual directors, Group, and its shareholders, and was to Mutual’s detriment. In all, the policyholders conclude the defendants exchanged assets worth more than $900 million at the time of the original petition for consideration of only $126 million. Further, because Mutual was essentially subsumed under Group, the policyholders argue, what in fact occurred was a demutualization.

Demutualization occurs when a private mutual company converts to a publicly held stock company. In order for a mutual company to do this by statutory procedure, it must follow strict guidelines ensuring fairness to its policyholders. See Iowa Code ch. 515G (1997) (describing mutual insurance company conversions). Mutual’s policyholders argue these procedures were not followed, and they suffered harm as a result.

In December 1997, Rieff filed a derivative suit against the individual directors/officers of Mutual and Group and Group individually. She later amended her petition in June 1998 to include class claims and a class of injured policyholders. The amended petition asserts eight counts against all named defendants. The petition alleges five derivative claims and three class action claims, the main one being de facto demutualization. The petition requests relief for Mutual and its policyholders. A summary of the amended petition is included below:

Count I Breach of Fiduciary Duty (Derivative Claim);
Count II Waste of Corporate Assets (Derivative Claim);
Count III Improper Transfer of Control (Derivative Claim);
Count IV Intentional Interference with Business Advantage and Contracts (Derivative Claim);
Count V Equitable Relief (Derivative Claim);
Count VI De Facto Conversion (Class Action Claim);
Count VII Breach of Fiduciary Duty (Class Action Claim); and
Count VIII Intentional Interference with Advantageous Business and Contractual Relationships (Class Action Claim).

Nationwide intervened as a defendant in 1998 following its purchase agreement with and for Allied and its subsidiaries. The policyholders sought to enjoin this sale from going through pending their litigation. In July 1998, a hearing was held on the policyholders’ motion for temporary and permanent injunction against the sale of all Allied companies to Nationwide. This motion was denied. The directors/officers, together with Group, also filed a motion to dismiss the policyholders’ amended petition. They argued policyholders have no standing to bring a derivative suit, the statute of limitations bars the basis for the claims, and the policyholders have otherwise failed to state a cognizable claim for which relief can be granted.

The district court agreed with each argument made by the defendants. It granted the motion to dismiss in its entirety. The district court’s opinion has caused quite a stir among those in the insurance and legal communities. Six amicus curiae briefs have been filed since the policyholders took their appeal to our court. The issue generating the most dispute is whether a policyholder has standing to bring a derivative suit on behalf of her mutual company. This right is unequivocally recognized for shareholders by state statute. Iowa Code § 490.740. A similar right for policyholders may also be found in past precedent. Rowen v. LeMars Mut. Ins. Co., 230 N.W.2d 905 (Iowa 1975) (Rowen I). We have never addressed the application of section 490.740 to policyholders or this section’s effect on our Rowen jurisprudence. See, e.g., Rowen v. LeMars Mut. Ins. Co., 282 N.W.2d 639 (Iowa 1979) (Rowen II); Rowen I, 230 N.W.2d 905.

The other issues on appeal question the timeliness of the action, as well as the effect of the amended petition. We are also asked to determine if de facto demu-tualization is a valid cause of action when being used to describe the restructuring of a mutual insurance company to the benefit of a stock company without compensation to its policyholders. Defendants further allege that the class claims fail to provide the policyholders with a right of recovery. Finally, defendant Group maintains that the policyholders’ petition fails to state a claim against Group in several respects.

II. Standard and Scope of Review

“A motion to dismiss tests the legal sufficiency of a plaintiffs petition.” Schaffer v. Frank Moyer Constr., Inc., 563 N.W.2d 605, 607 (Iowa 1997); Iowa R. Civ. P. 88(a), (f). On appeal from a motion to dismiss, we employ a limited review; it is not de novo. Iowa R.App. P. 4; Ritz v. Wapello County Bd. of Supervisors, 595 N.W.2d 786, 789 (Iowa 1999). “We review rulings on motions to dismiss for correction of errors at law, and we will affirm a dismissal only if the petition shows no right of recovery under any state of facts.” Barnes v. State, 611 N.W.2d 290, 292 (Iowa 2000). The district court’s decision to grant a motion to dismiss is proper only when the petition, “on its face shows no right of recovery under any state of facts.” Tate v. Derifield, 510 N.W.2d 885, 887 (Iowa 1994).

We review the policyholders’ “petition in its most favorable light, resolving all doubts and ambiguities in [their] favor.” Schreiner v. Scoville, 410 N.W.2d 679, 680 (Iowa 1987). We must “accept[ ] as true the allegations in the petition.” D.M.H. by Hefel v. Thompson, 577 N.W.2d 643, 644 (Iowa 1998). However, “facts not alleged cannot be relied on to aid a motion to dismiss nor may evidence be taken to support it.” Ritz, 595 N.W.2d at 789; Tate, 510 N.W.2d at 887 (“We have held that a motion to dismiss can neither rely on facts not alleged in the petition (except those of which judicial notice may be taken) nor be aided by an evidentiary hearing.” (citation omitted)).

III. Issues on Appeal

A motion to dismiss should not be liberally granted. We will affirm a dismissal only if the policyholders “faked to state a claim upon which any relief could be granted under any state of supporting facts that could be established.” Schreiner, 410 N.W.2d at 680 (citing Murphy v. First Nat’l Bank, 228 N.W.2d 372, 375 (Iowa 1975)). “At issue is petitioner’s right of access to the district court, not the merits of his allegations.” Richards v. Iowa Dep’t of Revenue & Fin., 454 N.W.2d 573, 574 (Iowa 1990); accord Gradischnig v. Polk County, 164 N.W.2d 104, 106 (Iowa 1969) (“At this stage of the litigation no question is presented as to truth of the allegations contained in the challenged pleading. The sole issue is whether plaintiffs are entitled to their day in court....”).

A. Policyholder Derivative Claims

Ordinarily, a “motion to dismiss for lack of standing place[s] the burden on plaintiffs to show (1) a specific, personal, and legal interest in the litigation, and (2) injury.” City of Dubuque v. Iowa Trust, 519 N.W.2d 786, 789 (Iowa 1994). Here, the issue of policyholder standing hinges on statutory authority and its relation to our prior cases assuming standing in this area. Compare Iowa Code § 490.740, tvith Rowen I, 230 N.W.2d at 915-16. Specifically we must decide whether section 490.740 provides the exclusive means for all derivative suits in Iowa. If so, we will then seek to determine the scope and effect of section 490.740.

1. Rowen Jurisprudence

The policyholders argue that policyholder standing to bring a derivative suit has been established by our prior jurisprudence, notwithstanding statutory authority. It is true that we have entertained several policyholder derivative suits in our court, however, standing to bring these suits was never at issue. See Rowen II, 282 N.W.2d at 639; Rowen I, 230 N.W.2d at 905. Nonetheless, the policyholders suggest that these cases are dispositive to our determination. They argue it would be absurd to suggest now that Rowen does not recognize a policyholder’s right to sue third parties derivatively on behalf of its company. Unfortunately, it is not that simple.

We are not in the habit of addressing issues neither party has presented. The fact that we allowed the Rowen cases to proceed does not automatically establish a right in policyholders to bring derivative suits. However, if our court felt we lacked jurisdiction because of standing, we could have raised that on our own motion, even if it was not an issue before us. Troester v. Sisters of Mercy Health Corp., 328 N.W.2d 308, 311 (Iowa 1982).

Rather than be concerned about standing in Rowen I, we discussed at length the necessity for derivative suits. Our court concluded that when the corporation is a public franchise, its policyholders own it and are permitted to seek redress for wrongs done to it on behalf of the company. Rowen I, 230 N.W.2d at 915-16.

[Corporations do not have the same autonomy as other parties. A corporate charter is a public franchise. The stockholders, in this case policyholders, own that franchise. One who wrongs the corporation injures the public franchise held by the policyholders.
... Although the right to seek derivative relief is subject to abuse, it is essential as a means to permit correction of intracorporate wrongs.

Id. This language strongly suggests that our court assumed policyholders had standing to bring derivative suits against their company. Further, we recognized that the derivative action was an indispensable way for policyholders to hold their corporation’s officers and directors accountable. We continued to entertain these suits and never challenged by our own motion the right of the policyholders to bring these claims. See, e.g., Rowen v. LeMars Mut. Ins. Co., 357 N.W.2d 579 (Iowa 1984); Rowen v. LeMars Mut. Ins. Co., 347 N.W.2d 630 (Iowa 1984).

2. Statutory Authority vs. Past Jurisprudence

Not every legal right is rooted in legislative enactment. Claims can be as freely brought under precedential authority as those founded on statute. See Benjamin v. Lindner Aviation, Inc., 534 N.W.2d 400, 405 (Iowa 1995) (holding that the common law treasure trove laws exist distinct from the statutory law). As such, “[w]e are obliged ... to interpret statutes in conformity with the common law wherever statutory language does not directly negate it.” Cookies Food Prods., Inc., by Rowedder v. Lakes Warehouse Distrib., Inc., 430 N.W.2d 447, 452 (Iowa 1988). However, if statutory authority has preempted a right provided by case precedent, the common law must give way. Ganske v. Spahn & Rose Lumber Co., 580 N.W.2d 812, 814 (Iowa 1998). A case at common law can provide the plaintiffs with standing to pursue their action in equity. See State ex rel. Weede v. Bechtel, 244 Iowa 785, 811-16, 56 N.W.2d 173, 187-90 (1952).

It should be noted that our court recognized the general right to bring a derivative suit well before clear legislative authority existed providing this right to shareholders. Id. We reaffirmed this right one year before our decision in Rowen I. Holi-Rest, Inc. v. Treloar, 217 N.W.2d 517, 523-25 (Iowa 1974). Our court relied on both State ex rel. Weede and Holi-Rest to conclude:

[W]e have long recognized the right and obligation of the courts to vindicate wrongs done to corporations by others, whether they be officers, directors or strangers.... We have also permitted derivative actions. The derivative action is a unique judicial device by which those who hold the public franchise may seek redress in behalf of the corporation for wrongs done to it. Although the right to seek derivative relief is subject to abuse, it is essential as a means to permit correction of intracorporate wrongs.

Rowen I, 230 N.W.2d at 916 (citations omitted). Our court recognized that the derivative suit was the basis of the policyholders’ challenge before us and addressed the merits in equity. Id. at 915-16. For this reason, the policyholders posit that the right of a policyholder to bring a derivative action exists in legal precedent and cannot be summarily destroyed by the legislature without clear, legislative language. As such, “statutes will not be construed as taking away common law rights existing at the time of enactment unless that result is ‘imperatively’ required by the language of the statute.” Collins v. King, 545 N.W.2d 310, 312 (Iowa 1996).

The defendants assert that our past jurisprudence is not controlling in this area. They argue that even if earlier supreme court decisions did at one time establish policyholder standing, the enactment of section 490.740 in 1989 overruled this line of decisions. Oppositely, the policyholders allege that the predecessor to section 490.740 was essentially identical to it, also naming only shareholders. See Iowa Code § 496A.43 (1975). They argue that the ■Rowen courts firmly established the right of this action to policyholders even with the language of section 490.740’s predecessor available to it.

The defendants cite two statutory provisions to contest the policyholders’ argument. See Iowa Code §§ 490.740, 490.1701 (1997). Section 490.740 acknowledges the right to bring a derivative suit. Section 490.1701 limits the application of all provisions within chapter 490, including section 490.740. The dispute surrounding these provisions are twofold: (1) Section 490.740 uses the term “shareholder” in reference to derivative suits, and (2) Section 490.1701(2) forbids chapter 490’s applicability to mutual companies.

The relevant provisions are provided below.

490.740. Procedure in derivative proceedings
1. A person shall not commence a proceeding in the right of a domestic or foreign corporation unless that person was a shareholder of the corporation when the transaction complained of occurred or unless that person became a shareholder through transfer by operation of law from one who was a shareholder at that time.

Id. § 490.740(1) (emphasis added).

490.1701. Application to existing corporations
2. Unless otherwise provided, this chapter does not apply to ... a corporation organized on the mutual plan under chapter 491....

Id. § 490.1701(2) (emphasis added).

Chapter 491 deals with “corporations for pecuniary profit.” Mutual has been organized under this chapter. Chapter 491 does not have a comparable derivative suit section. As such, chapter 491 neither approves nor disapproves of derivative suits. We agree with the defendants that section 490.740 cannot on its terms provide policyholders with the derivative right they are seeking. However, section 490.740 does not purport to be the exclusive provider of derivative remedy for every corporate context. Accordingly, if there is some other authority for policyholders to bring a derivative suit, no statute in the Iowa Code would prohibit it.

We feel our past cases, especially our Rowen jurisprudence, provide that authority. We do not agree that because the Roiven cases were decided before section 490.740 was enacted, section 490.740 overruled Rowen when it became effective. How can section 490.740 overrule Rowen, which deals with a mutual company derivative suit, when by its own language, chapter 490 does not apply to mutual companies? See id. § 490.1701(2). Quite simply, it cannot. Roiven assumed that policyholders have standing and nothing in section 490.740 overrules that right.

3. National Treatment of Policyholder Standing

Policyholder standing to sue derivatively is a right much recognized by other jurisdictions. See generally Theodore Alleg-aert, Comment, Derivative Actions by Policyholders on Behalf of Mutual Insurance Companies, 63 U. Chi. L.Rev. 1063, 1070-71 (1996) [hereinafter Allegaert] (“[Tjhere is ample precedent for allowing policyholder derivative actions to proceed.... Virtually all judicial opinions in insurance derivative actions ... have merely assumed ... standing.”). The United States Supreme Court has also recognized that the derivative suit is available to policyholders because of their similarity to shareholders. Koster v. (American) Lumbermens Mut. Cas. Co., 330 U.S. 518, 522, 67 S.Ct. 828, 830, 91 L.Ed. 1067, 1072-73 (1947). “The stockholder’s derivative action, to which this policyholder’s action is analogous, is an invention of equity to supply the want of an adequate remedy at law to redress breaches of fiduciary duty by corporate managers.” Id. (emphasis added).

Courts around the nation have either explicitly provided this right or assumed it was available to policyholders. Koster v. (American) Lumbermens Mut. Cas. Co., 153 F.2d 888, 890-91 (2d Cir.1946), aff'd, 330 U.S. 518, 67 S.Ct. 828, 91 L.Ed. 1067 (1947); Elgin v. Alfa Corp., 598 So.2d 807, 810-12 (Ala.1992); Lower v. Lanark Mut. Fire Ins. Co., 151 Ill.App.3d 471, 473, 104 Ill.Dec. 341, 343, 502 N.E.2d 838, 840 (1986); O’Donnell v. Sardegna, 336 Md. 18, 32, 646 A.2d 398, 404-05 (1994); Harhen v. Brown, 46 Mass.App.Ct. 793, 808, 814-15, 710 N.E.2d 224, 235, 238-39 (1999), rev’d on other grounds by 431 Mass. 838, 730 N.E.2d 859 (2000); Pathfinder Life Ins. Co. v. Livingston, 140 Neb. 354, 299 N.W. 537, 539 (1941); Amabile v. Lerner, 64 N.J.Super. 507, 511-12, 166 A.2d 603, 605 (1960); Lesser v. Burry, 132 Ohio App.3d 319, 322, 724 N.E.2d 1227, 1229 (1999); Drain v. Covenant Life Ins. Co., 454 Pa.Super. 143, 152-56, 685 A.2d 119, 124-26 (1996). Further, several courts have used our Rowen jurisprudence to persuade them that policyholders have standing. See O’Donnell, 646 A,2d at 404; Harhen, 710 N.E.2d at 239.

Finally, we have found no court that has expressly said this right is unavailable to policyholders absent controlling statutory direction. Rather, courts have been sensitive to the necessity of such suits “to deal fairly and competently with those seeking relief for wrongs done.” Harhen, 710 N.E.2d at 234. “With respect to its cause of action against a faithless director, the company is a trustee for the policyholders who will benefit by its recovery of diverted assets.” Koster, 153 F.2d at 890.

Usually the wrongdoing officers also possess the control which enables them to suppress any effort by the corporate entity to remedy such wrongs. Equity therefore traditionally entertains the derivative or secondary action....
The cause of action which such plaintiff brings before the court is not his own but the corporation’s. It is the real party in interest and he is allowed to act in protection of its interest somewhat as a “next friend”'might do for an individual, because it is disabled from protecting itself.

Koster, 330 U.S. at 522-23, 67 S.Ct. at 830-31, 91 L.Ed. at 1073 (footnote omitted). Hence, “[i]t will not do to construct a system which permits the foreclosure of relief merely at the request of those who are, or may be, in league with the wrongdoers. ...” Harhen, 710 N.E.2d at 234-35.

We find that policyholders have standing to hold third parties accountable to their corporation by derivative suit. Nothing in chapter 490 prohibits this power or overrules several years of precedent indicating this as an authorized policyholder action. Moreover, we are persuaded that a suit in equity gives our court more leeway to address issues that would not ordinarily be available to policyholders otherwise. See Koster, 330 U.S. at 522, 67 S.Ct. at 830, 91 L.Ed. at 1072-73. Accordingly, we reverse the district court’s dismissal of these derivative claims for lack of standing.

B. Alleged Procedural Defects of Pleading

Initially, we address two possible procedural defects: (1) The policyholders did not originally plead the class claims and now seek to amend their petition more than five years after any alleged act of misconduct occurred; and (2) The majority of the alleged acts of misconduct to support the derivative and class claims occurred more than five years prior to the filing of the original 1997 petition.

1. The Amended Class Claims

The original petition filed on December 31, 1997 only asserted derivative claims. Mary Rieff was also not a named plaintiff in a class capacity. In June of 1998, the petition was amended to include Rieff, asserting on behalf of a class of policyholders an additional three counts brought as class claims. To properly amend a petition, the amendment must relate back to the original petition. Generally, relation back determinations are governed by Iowa Rule of Civil Procedure 69(e). See Porter v. Good Eavespouting, 505 N.W.2d 178, 181 (Iowa 1993) (discussing an earlier version of Rule 69(e)). However, we have recognized that when the amended petition seeks to add a new plaintiff, we are not strictly bound by this rule. Ezzone v. Riccardi, 525 N.W.2d 388, 399-400 (Iowa 1994).

The relation back rule is founded on notice. Estate of Kuhns v. Marco, 620 N.W.2d 488, 493-94 (Iowa 2000). This is “to ensure that any amendment to a pleading made after the statute of limitations has expired does not cause the type of prejudice to the defendant sought to be avoided by the statute of limitations.” Id. at 494. Here, Rieff was added as a plaintiff on behalf of a class of policyholders. The acts of misconduct alleged on behalf of the corporation in the derivative claims are the same acts of misconduct providing the basis for the class claims. In the original petition, the defendants were placed on notice that specific actions wronged the corporation. In the amended petition, these same acts were also used to assert that the policyholders themselves suffered special injury.

We have stated: “The notice required under the relation back doctrine relates to notice that is sufficient to permit a defendant to prepare a defense to an action on the merits.” Id. at 495. The creation of a class in the present case added additional plaintiffs, but the core acts of misconduct remained the same. In this regard, we will find relation back as long as “the underlying claims remain unchanged.” Id. at 496. In the present case, three new claims were added along with additional plaintiffs. “Amendments that add claims along with new plaintiffs would require an additional analysis consistent with the purpose of rule 69(e) as well as the language of the rule.” Id. We need to determine then if the notice purpose and the language of Rule 69(e) are met before we can conclude the amendment relates back.

Notice is not a problem here because the defendants already knew what conduct they needed to defend against. Whether it was against Mutual as a whole or its policyholders does not change the notice determination. Moreover, no responsive pleading had been filed prior to this amended petition. As such, our rule states: “A party may amend a pleading once as a matter of course at any time before a responsive pleading is served.... ” Iowa R. Civ. P. 69(d). Rule 69(e) further notes:

Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading.

Iowa R. Civ. P. 69(e). Clearly the class claims arise out of the same conduct and transactions enunciated in the derivative claims. As such, the amended petition relates back to the original petition for purposes of this appeal even though a new class of plaintiffs and class claims were added.

2. Statute of Limitations

Generally, the defense of statute of limitations is affirmatively asserted by a responsive pleading. Davis v. State, 443 N.W.2d 707, 708 (Iowa 1989); Pride v. Peterson, 173 N.W.2d 549, 554 (Iowa 1970). However, the statute of limitations bar may be raised by a motion to dismiss. Clark v. Miller, 503 N.W.2d 422, 423 (Iowa 1993). “[W]hen it is obvious from the uncontroverted facts shown on the face of the challenged petition that the claim for relief was barred when the action was commenced, the defense may properly be raised by a motion to dismiss.” Davis, 443 N.W.2d at 708.

We think that the applicable statute of limitations is five years. See Iowa Code § 614.1(4). Actions “founded on unwritten contracts, those brought for injuries to property, or for relief on the ground of fraud in cases heretofore solely cognizable in a court of chancery, ... [must be brought] within five years.” Id. The policyholders make a half-hearted effort to suggest that their claims are founded on written contract and deserve a ten-year statute of limitations. See id. § 614.1(5). However, they point to no viable written contract in their petition to support their contention. For instance, the policyholders are not alleging Mutual was actually unable to fulfill the requirements of their policies. ‘Where the liability cannot be shown by a writing, it is reasonable to say as a matter of law that an action on such liability is founded on an unwritten rather than a written contract.” Motherly v. Hanson, 359 N.W.2d 450, 454-55 (Iowa 1984) (“In order for a cause of action to be founded upon a contract in writing, the instrument itself must contain an undertaking to do the thing for the non-performance of which the action is brought." (citations omitted)).

When the original petition was filed on December 31, 1997, only two acts of misconduct had occurred within five years. In January of 1993, Mutual’s directors surrendered Mutual’s remaining control of the asset pool to Group and its subsidiaries for no consideration. In February of 1993, Mutual’s directors sold off its remaining shares in Group. All other incidents of improper conduct occurred more than five years before December 31, 1993, the earliest one occurring in 1985. Barring any special exception, only the 1993 incidents may be used by this court to determine if the petition could support any right of recovery. The policyholders posit two reasons why the statute of limitations is not a barrier to any alleged act of misconduct: (1) fraud and (2) the discovery rule.

a. Fraud

The policyholders maintain fraud kept them from discovering the effect of the defendants’ alleged misconduct. There is evidence that the events were noted in proxy statements made to Group’s shareholders. However, no similar disclosure was made to Mutual’s policyholders. The pleading indicates that two audits of these activities were conducted by the insurance commissioner’s office of Iowa. No corporate-structure-changing events were detected by either audit. The second audit, conducted in December of 1994 incorrectly concluded that the pooling agreement remained prorated. In reality, any share to the pool Mutual once owned had already been surrendered to Group and its subsidiaries. By the time of the 1994 audit, Mutual no longer maintained any control of the pool.

Mutual received a draft of the commissioner’s report for its approval. Neither it nor its directors corrected this error on the report. Mutual allowed the commissioner to errantly conclude that it still had a share of the pool. The import of this nonaction, the policyholders claim, is that the report portrays Mutual as part of the profit sharing arrangement to current and prospective policyholders, ie., the report does not indicate that Group’s shareholders are receiving the benefits from Mutual’s business. It also does not recognize that Mutual no longer has control of its own operations and is subservient to Group and its shareholders, as opposed to maintaining the autonomy and control over Group it once had. The alleged true effect of these transactions was not discovered until September of 1997 by an independent insurance expert.

We recognize that fraudulent concealment can toll the applicable statute of limitations. In this regard, to toll the statute of limitations,

the plaintiff carries the burden of either (1) proving “that the defendant affirmatively concealed the facts on which the plaintiff would predicate [the] cause of action,” or (2) proving “a confidential or fiduciary relationship exists between the person concealing the cause of action and the aggrieved party” combined with proof that defendant breached the duty of disclosure.

McClendon v. Beck, 569 N.W.2d 382, 385 (Iowa 1997) (alteration in original) (citations omitted). Where a plaintiff can show there is a fiduciary relationship, no affirmative concealment need be pled. The policyholders allege the defendants had a fiduciary duty to disclose these actions to Mutual’s policyholders. In such a case, mere silence may be enough to equal fraudulent concealment. Both the existence of a duty and the failure to disclose the transactions to Mutual’s policyholders have been sufficiently pled here as to Mutual’s defendant-directors.

However, whether a fiduciary relationship exists between the policyholders of Mutual and the directors of Group and Group itself is a difficult question for resolution by a motion to dismiss. “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.” Kurth v. Van Horn, 380 N.W.2d 693, 696 (Iowa 1986). While it is true that “the corporate officer is a fiduciary to the shareholders” the policyholders of Mutual seek to impose that duty on the directors of Group, as well as Group individually. See Black’s Law Dictionary 640 (7th ed.1999).

Clearly, Mutual’s directors owe a fiduciary duty to its policyholders. See Rowen II, 282 N.W.2d at 654; State ex rel. Weede, 244 Iowa at 804, 56 N.W.2d at 183. The question becomes do those directors in their capacity as Group’s directors, and therefore, Group itself owe a similar duty under these unique circumstances and corporate arrangements? Rowen II suggests “all who assist or cooperate in the breach of fiduciary duties whether directors or not are liable for the resulting damage.” Rowen II, 282 N.W.2d at 654. As such, we find that the policyholders have sufficiently pled the existence of a fiduciary relationship in every defendant to survive this stage of the case. Because facts of fraudulent concealment and this doctrine’s application here have also been sufficiently pled, we feel there is a genuine question as to when the statute of limitations began to run.

b. The Discovery Rule

Regardless of their ability to prove fraud, the policyholders assert that the statute of limitations for these alleged acts of misconduct did not begin to run until they were discovered by the policyholders. “In civil cases, under the discovery rule, the statute of limitations begins to run when the injured party has actual or imputed knowledge of the facts that would support a cause of action.” State v. Wilson, 573 N.W.2d 248, 253 (Iowa 1998). Stated another way, “a claim does not accrue until the plaintiff knows or in the exercise of reasonable care should have known both the fact of the injury and its cause.” Woodroffe v. Hasenelever, 540 N.W.2d 45, 47 (Iowa 1995).

The policyholders maintain that they were given no notice or disclosure of the transactions that eventually turned formerly independent Mutual into an entity totally dependent on a stock company. They suggest it was not reasonable for them to be put on notice by proxy statements provided to Group’s shareholders. And due diligence on their part could not have discovered the effect of the transactions because even the Iowa Insurance Commissioner could not uncover what had transpired. The policyholders assert they were given no cause to prompt further investigation until 1997 when an independent insurance expert noted the evolution.

With these facts of inability for discovery pled, coupled with allegations of fraud, the policyholders have sufficiently placed the onset of the statute of limitations in dispute. When such is the case, a dismissal of the petition based on statute of limitations grounds is not appropriate. Pride, 173 N.W.2d at 554.

c. Miscellaneous Defenses to the Class Claims

The defendants argue that the claim alleging de facto demutualization should be dismissed because it is not a viable basis for recovery in Iowa. They further suggest that the class claims are really derivative claims in sheep’s clothing. More specifically, the defendants allege Count VIII fails to state a claim for intentional contractual interference and should be dismissed on this ground as well as derivative grounds. Finally, defendant Group alleges that Counts III, V, and VI of the amended petition fail to state a claim against Group and should be dismissed as to Group. Without passing judgment on the merits of the policyholders’ claims, we will determine whether they could provide any right of recovery.

At the outset, we should note that Iowa is a notice pleading state. Iowa R. Civ. P. 69(a).

“Since the advent of notice pleading under Iowa Rule of Civil Procedure 69(a), it is a rare case which will not survive a [motion to dismiss]. As a result, disposition of unmeritorious claims in advance of trial must now ordinarily be accomplished by other pretrial procedures which permit narrowing of the issues and piercing of the bare allegations contained in the petition.”

Haupt v. Miller, 514 N.W.2d 905, 909 (Iowa 1994) (quoting Am. Nat’l Bank v. Sivers, 387 N.W.2d 138, 140 (Iowa 1986)). Very little is required in a petition to survive a motion to dismiss. See Smith v. Smith, 513 N.W.2d 728, 730 (Iowa 1994) (“A petition gives ‘fair notice’ if it informs the defendant of the incident giving rise to the claim and of the claim’s general nature.”). We do not require a “pleading of ultimate facts that support the elements of the cause of action; however, facts sufficient to apprise the defendant of the incident must be included in the petition in order to provide ‘fair notice’ of the claim asserted.” Schmidt v. Wilkinson, 340 N.W.2d 282, 283 (Iowa 1983).

Further, we do not require a petition to allege a specific legal theory. Iowa R. Civ. P. 69(b). A “pleading ‘is sufficient if it apprises of the incident out of which the claim arose and the mere general nature of action.’ ” Haugland v. Schmidt, 349 N.W.2d 121, 123 (Iowa 1984) (quoting Northwestern Nat’l Bank v. Metro Ctr., Inc., 303 N.W.2d 395, 401 (Iowa 1981)). Under Rule 69’s requirement that the petition set forth a claim for relief, the claim is not the equivalent of a cause of action. Obviously, the claims asserted must be capable of recovery. Once that is established, a prima facie showing will suffice. Wilkinson, 340 N.W.2d at 284.

1. De Facto Demutualization

Because of the shift of power and control from Mutual to Group, the policyholders argue a de facto conversion or demutualization of Mutual into a stock company occurred. The policyholders and defendants both presented two very different definitions of a demutualization in oral argument. The defendants argued that when a demutualization occurs, the mutual company ceases to exist as an insurance company necessitating the distribution of surplus to its displaced policyholders. The company loses its insurance license and no longer functions as an insurance company. This very limited definition is important because here, Mutual still exists and honors its policies. Under this definition, Mutual could not have demutualized.

Conversely, the policyholders defined a demutualization as a conversion of an enterprise from mutual to stock ownership. All business and control becomes founded in stock, but the company itself persists and distributes policies. This broader definition is important because it recognizes that the company can continue to serve mutual functions, but is now controlled by stock ownership. Here, the policyholders plead that Mutual continues to operate as a mutual company but no longer has any right to control or profits. It has effectively been made subservient to the Group stock company. Under this definition, Mutual may have demutualized.

The Iowa Legislature has described the effect of a demutualization.

The successor stock company is a continuation of the mutual insurer and the conversion does not annul or modify any of the mutual insurer’s existing suits, contracts, or liabilities except as provided in the approved conversion plan. All rights, franchises, and interests of the mutual insurer in and to property, assets, and other interests shall be transferred to and shall vest in the successor stock company and the successor stock company shall assume all obligations and liabilities of the mutual insurer.

Iowa Code § 515G.9. This definition is particularly important because it assumes the mutual company lives on — what changes is that the interest in property and assets of the mutual company are now vested in stock ownership. Mutual’s policyholders assert that this is not unlike what happened here when Mutual gave all of its employees and its share of the profit pool to Group. Most of the consideration made from these transfers was provided to Group, not Mutual. Our review of the pleadings and supporting arguments leads us to conclude that the policyholders have pled sufficient facts to create a question as to whether Mutual did demutualize. Dismissal for the opposite conclusion was inappropriate.

2. The Validity of Counts VI-VII as Class Claims

The defendants allege the class claims should be dismissed because they are really derivative in nature. Because we have analogized policyholders to shareholders for purposes of bringing a derivative suit, we feel it is also appropriate to apply the factors for determining the validity of a shareholder’s class claims to these policyholders’ class claims. We first recognize,

“[a]s a matter of general corporate law, shareholders have no claim for injuries to their corporations by third parties unless within the context of a derivative action.
There is, however, a well-recognized exception to the general rule: a shareholder has an individual cause of action if the harm to the corporation also damaged the shareholder in his capacity as an individual rather than as a shareholder.”

Engstrand v. West Des Moines State Bank, 516 N.W.2d 797, 799 (Iowa 1994) (alteration in original) (citation omitted). The policyholders cannot assert injury to the corporation under the guise of a class claim. Individual injury is the disputed contention in regard to the class claims here. As such,

in order to bring an individual cause of action for direct injuries a' shareholder must show that the third-party owed him a special duty or that he suffered an injury separate and distinct from that suffered by the other shareholders.

Id. (citation omitted). To distinguish these claims from their derivative claims, the policyholders must plead sufficient facts to show either that the defendants owed them a special duty or that every policyholder involved in the class suffered a special injury.

The defendants argue that the class claims do not fall under either Engst-rand criterion. We are not convinced. If a mutual company would like to demutualize, it must follow statutory steps to that end. See Iowa Code ch. 515G. Some of those steps include providing notice and a vote in this decision to its policyholders. Id. §§ 515G.4, .6. Additionally, the policyholders will then receive some form of payout from this approved conversion, e.g., through stock offers or dividends. Id. § 515G.3. These steps are not discretionary, but required. With an affirmative responsibility to disclose its intentions and seek approval from policyholders, as well as compensate them upon conversion, this creates a special duty not ordinarily cognizable between a mutual corporation and its policyholders.

We have recognized that when a special duty is present, the shareholders suffer a harm not suffered by the corporation itself and have an individual action against the corporation.

[W]hen there exists a special duty to the shareholder, outside of duties to the corporation, breach of that duty individually harms the shareholder and suit may be brought in that capacity. To this end, plaintiffs argue the interference with contract was specifically directed at them, not the corporation. Because of this, they claim to possess their own action.
We agree.

Ezzone, 525 N.W.2d at 395 (citing Cunningham v. Kartridg Pak Co., 332 N.W.2d 881, 883 (Iowa 1983)). Here, the alleged payout the policyholders would have received given a legal demutualization was never something the corporation was entitled to. If, as the policyholders would like to prove, the corporation demutualized without following those statutory requirements, the only parties injured were the policyholders, not the corporation.

Given the above discussion then, at the very least, Count VI, the de facto conversion claim, cannot be derivative because there was a special duty and no corporate injury. Clearly, Mutual itself could not sue its directors for improperly demutual-izing when it suffered no injury. This is true because the directors are not required to compensate the mutual company under the conversion plan. As such, it was error to dismiss Count VI.

As for Count VII, the plaintiff alleges that the individual defendants owed the plaintiff and the members of the class of policyholders fiduciary duties by reason of their positions as directors of Mutual. The alleged duties include duties of care, fidelity, loyalty, and diligence in the management and administration of the company’s affairs. These duties were allegedly breached by the defendant-directors and Group by their transfer gradually and ultimately, en toto, of the surplus of Mutual to Group. This resulted in the elimination of any possibility that the policyholders could benefit from the surplus by receiving reduced premiums or a declared dividend. The plaintiff asserts this scenario as a special injury to her and the policyholders as a class, which is separate from the effect on Mutual as a corporation. The loss of the surplus of Mutual by its transfer to Group obviously injured Mutual by diminishing its assets. However, policy claims presumably would still be honored. But the policyholders assert that they were separately injured as a class by this transfer because it destroyed the only fund and basis from which they could benefit from profitable business years through the declaration of dividends or reduced premiums.

Although this claim is somewhat entwined with Count VI and the derivative claim, we believe that enough separateness is shown to stand alone and survive a motion to dismiss. We also recognize that a breach of fiduciary duty is generally recognized as a derivative claim. See Weltzin, 618 N.W.2d at 299; Cunningham, 332 N.W.2d at 883. However, under the unusual circumstances of the fact pattern alleged, we find the plaintiffs have pled enough facts to distinguish the normal fiduciary duties owed to Mutual as a corporation from that owed to the policyholders. Cf. Engstrand, 516 N.W.2d at 799-800. Because our pleading rules include an allowance for alternative pleadings, we are further persuaded that this claim should survive the present stage. Iowa R. Civ. P. 69(b). Thus, it was error to dismiss Count VII.

Finally, Count VIII is brought as a claim of intentional interference with advantageous business and contractual relationships. At this point, we must recognize that shareholders and policyholders are not entirely synonymous with each other. There are many similarities, and for purposes of a derivative suit, they share enough qualities to provide standing to policyholders. However, there is one fundamental difference between shareholders and policyholders: Shareholders have an absolute stake in the corporation’s future business and contracts because these areas affect the value of their investment and the amount of profit they will share. On the other hand, policyholders are more like creditors of a corporation in that then-interest is ensuring the corporation has enough assets to satisfy the terms of their policies. See generally Allegaert, 63 U. Chi. L.Rev. at 1067-74.

If the directors of a mutual corporation interfere with its ability to conduct business and enter into contracts, this injures the corporation directly, and only indirectly, the policyholders. This is akin to a corporate waste claim, which is a classic derivative injury. Whalen v. Connelly, 545 N.W.2d 284, 292 (Iowa 1996) (“The claim is derivative in nature because [the plaintiff] was not injured ‘directly or independently’ of the partnership.”); see also Economy Roofing & Insulating Co. v. Zumaris, 538 N.W.2d 641, 652 (Iowa 1995) (holding intentional interference claim against the former officer of a company rightfully asserts the corporation’s injury). Under such a scenario, there is no special, individual injury distinct from the corporation’s. Moreover, this claim was correctly brought derivatively, which our holding today allows the policyholders to assert. Because we find this claim was properly dismissed because of its derivative nature, we pass no judgment on the defendants’ assertion that it failed to state a claim upon which relief could be granted.

3. Issues Raised by Group

Defendant Group maintains that Counts III, V, and VI fail to give Group notice that these claims are made against Group and should therefore be dismissed. We find no merit to this contention. Each claim specifically references all defendants generally. This is enough to put Group on notice that each claim is being asserted against it. See, e.g., Kleman v. Charles City Police Dep’t, 373 N.W.2d 90, 94 (Iowa 1985). Additionally, Group has failed to allege any prejudice that may support its contention. See West v. Hawker, 237 N.W.2d 802, 806 (Iowa 1976). Group also suggests these claims fail to state a claim against Group and should be dismissed for that reason. We have already held the policyholders have pled sufficient facts of a fiduciary duty owed by Group to the policyholders, as discussed in our opinion regarding fraud, such that these claims are sufficiently pled against Group to survive dismissal at this stage. Whether the policyholders will be successful in placing culpability on Group with these claims is not before the court on a motion to dismiss.

IV. Conclusion

Today we hold that policyholders have standing to assert derivative claims against their mutual company. We also find that dismissal of the amended petition on the basis of the statute of limitations is not founded at this time. We agree that a five-year statute of limitations is applicable here, but hold that the policyholders have pled sufficient facts to question when the statute began to run. We determine that the amended petition relates back to the original petition. We also hold that the theory of de facto conversion and breach of fiduciary duty may be asserted by this class of policyholders. Thus, in regard to Counts I-VII, the policyholders have alleged sufficient facts to survive dismissal at this stage.

The remaining class claim asserted by the policyholders was improperly pled. Intentional interference with business and contracts is a derivative claim under these facts. We affirm the district court’s dismissal of this class claim.

Accordingly, the dismissal of Counts I-VII is reversed. The dismissal of Count VIII is affirmed.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

All justices concur except CARTER and TERNUS, JJ., who take no part.

      . We do not create a new cause of action. We hold that if the policyholders can prove an improper conversion occurred that is contrary to Iowa law, they may assert their injury under the recognized tort of conversion. The "de facto” label is in place at this point because the policyholders as yet have been unable to show Mutual did demutualize, which, if such can be shown, may entitle them to some relief.


source: Caselaw Access Project

author: Paul H. Anderson Associate Justice

license: Public Domain

text:
    In re Petition for DISCIPLINARY ACTION AGAINST Michael E. KELLER, an Attorney at Law of the State of Minnesota.
    No. C0-01-1051.
    Supreme Court of Minnesota.
    July 3, 2001.
   ORDER

Based upon the application of the Director of the Office of Lawyers Professional Responsibility, pursuant to Rule 12(c)(1), Rules on Lawyers Professional Responsibility, and upon evidence that respondent Michael E. Keller cannot be found in the state or served personally with the petition for disciplinary action,

IT IS HEREBY ORDERED that respondent Michael E. Keller be, and the same is, suspended from the practice of law in Minnesota. Within one year from the date of this order, respondent may move for vacation of the order for suspension and for leave to answer the disciplinary petition.

BY THE COURT

Paul H. Anderson Associate Justice


author: PAUL H. ANDERSON, Justice.

text:
    STATE of Minnesota, Petitioner, Appellant, v. William GLOWACKI, Respondent.
    No. C8-99-1507.
    Supreme Court of Minnesota.
    July 12, 2001.
    Rehearing Denied Aug. 8, 2001.

      Mike Hatch, Atty. Gen., Peter A. Mac-Millan, Pondoni, MacMillan & Schneider, Ltd., Minneapolis, for appellant.
    Deborah Ellis, St. Paul, for respondent.
    Howard Bass, Daniel Guerrero, Mesh-besher & Spence, Ltd., Minneapolis, for amicus curiae MN Ass’n of Criminal Defense Lawyers.
    Amy Klobuchar, Hennepin County Atty., Michael Richardson, Asst. County Atty., Minneapolis, for amicus curiae MN County Attorneys Association.
   OPINION

PAUL H. ANDERSON, Justice.

Respondent William Glowacki was charged with assault, disorderly conduct, and domestic assault for allegedly attacking a woman in his home. At trial Glo-wacki asserted that he was acting in self-defense and requested that the district court instruct the jury on self-defense. The court, relying on a Minnesota Court of Appeals case that had been reversed, included a duty to retreat instruction along with a self-defense instruction. Glowacki was found guilty on all charges. The court of appeals reversed the jury’s guilty verdicts on assault and domestic assault, concluding that the district court had erroneously instructed the jury that Glowacki had a duty to retreat. The state appealed. We reverse the court of appeals, reinstate the jury’s verdicts, and remand to the court of appeals for consideration of Glo-wacki’s other issues on appeal.

Respondent William Glowacki and Priscilla Andrews met at a bar in Dolthan, Alabama late in the summer of 1998. After Glowacki returned to his Corcoran, Minnesota home, he and Andrews maintained telephone contact over the next few months. In late December 1998 or early January 1999, Glowacki returned to Dol-than and he and Andrews spent part of a day together. Following this visit, Glo-wacki and Andrews had more frequent telephone contact. Glowacki visited Andrews in Dolthan in late January and at this time they became intimately involved. Beginning in February, Glowacki and Andrews met approximately every two weeks in either Dolthan or Minnesota. Glowacki paid for Andrews’ airplane tickets to Minnesota, and in March of 1999, he paid for tickets for Andrews’ two adult daughters to accompany her. During this March visit, Andrews and her daughters brought many of Andrews’ clothes with them, which they left at Glowacki’s home. Glo-wacki provided closet and dresser space for Andrews to store her clothes. In late March, Glowacki spent a week in Dolthan making repairs to Andrews’ house.

Andrews testified that Glowacki made the repairs on her house and she brought her clothes to Corcoran in anticipation of her moving in with Glowacki. Glowacki testified that he never intended Andrews to move into his home. He also testified that his sexual relationship with Andrews ended during his weeklong visit to Dolthan in March, although he admits that the two continued to sleep in the same bed when they were together.

Andrews flew to Minnesota on April 1, 1999 and stayed with Glowacki. Andrews had a return ticket to Dolthan on April 21. Andrews had quit her job in Dolthan, but did have another job in place there. Andrews testified that she was returning to Dolthan on April 21 only to get her children settled. Andrews further testified that she and Glowacki had set a July wedding date.

On April 2, 1999, Glowacki and Andrews had an argument, during which Glowacki struck Andrews. Andrews testified that Glowacki became angry and struck her in the face, knocking her unconscious and giving her a black eye. Glowacki testified that he did strike Andrews, but not in the manner she suggested; rather, that he struck her only after she became hysterical and threatening. Glowacki also produced witnesses who testified that Andrews did not have a black eye following the incident. Andrews testified that she put theater makeup on her eye to cover the bruising. Andrews stated that after the incident on April 2 she considered her relationship with Glowacki over and began making plans to return to Dolthan as soon as possible.

Six days later, on April 8, Andrews accompanied Glowacki to a city council meeting. At the time, Glowacki was a member of the Corcoran City Council. After the meeting, the pair returned to Glowacki’s home and the incident leading to the criminal charges in this case occurred. Andrews and Glowacki gave differing versions of what happened after they returned home.

April 8 incident — Andrews’version

Upon returning home, Glowacki and Andrews sat down in the kitchen and began drinking wine. Andrews estimated that she drank approximately one-third of a bottle of Sangria and that Glowacki drank an entire bottle of Merlot. Andrews believed that Glowacki was upset about the city council meeting. She set her wineglass down and Glowacki yelled at her that she had almost spilled on an expensive chair. Glowacki and Andrews then moved to the bedroom and Glowacki laid down on the bed. Andrews asked Glowacki if he was going to bed and Glowacki responded with a profane statement and made a reference to another woman whom he had dated. After hearing this, Andrews left the bedroom and went to the den in the basement.

Soon after Andrews reached the den, Glowacki followed. Glowacki again made a profane statement and hit Andrews on the side of her head, knocking her down. Glo-wacki then kicked Andrews severely between 50 and 100 times, telling her he was going to kill her. During the kicking, Andrews was screaming and attempted to get up and she testified that “[e]very time I would try to stand up he would kick me back down *• * At one point Andrews managed to stand up and Glowacki put his hands around her throat. Glowacki also ripped the button off of her robe and told her to “[g]et the hell out of my goddamn house.” Andrews denied hitting or threatening Glowacki during the incident. Andrews estimated that the abuse lasted for about 20 minutes before she managed to run upstairs, grab a phone, and lock herself in the bathroom. Andrews then called the operator, who transferred her call to a 911 dispatcher.

April 8 incident — Glowacki’s version

When he and Andrews returned home from the city council meeting, Glowacki changed his clothes, poured himself a glass of wine, and sat down at the kitchen table to review some papers from the meeting. Andrews then sat down at the table and the two began talking about the council meeting.

Glowacki suggested that he and Andrews move to the den in the basement to watch a movie. Glowacki and Andrews sat in large stuffed leather recliners next to each other. Andrews was talking about something, but Glowacki was not paying attention. Glowacki saw Andrews nearly spill her wine on her recliner and asked her to be careful. Andrews asked Glo-wacki what his problem was, but he did not reply. Andrews then jumped out of her chair and stood directly in front of Glowacki, only inches away from him, and bent over him. Glowacki testified that she began screaming “a lot of horrible things.” Andrews rested her left hand on the arm of the chair, but kept her right arm behind her back, causing Glowacki to fear that she had something in her right hand. At one point during the screaming, Andrews hit Glowacki on the shoulder with her left hand.

Eventually Glowacki kicked Andrews with his right leg and she fell to the floor. Glowacki then stood up from the chair and told Andrews that she needed to “knock it off’ and that in the morning she needed to pack her bags and leave. Glowacki began to walk toward the stairs when he sensed Andrews behind him. He began to turn and saw something moving toward his head, so he threw his arm out as he turned and pushed Andrews to the floor. Glo-wacki then backed up and stood next to the recliner. Andrews stood up, screaming and yelling at Glowacki, walked over to the couch, sat down and began to cry. Glowacki waited until she had settled down a bit and while speaking quietly, began to approach Andrews. When he got close to the couch, Andrews kicked him in the left thigh. Glowacki testified that he got angry and told Andrews that they were going to pack her things and he was taking her to a hotel right then. In response, Andrews screamed an expletive at Glo-wacki and yelled that she was going to destroy him. Andrews then got up from the couch and went upstairs.

Glowacki sat down in the basement for about five minutes and then went upstairs to the kitchen to look for phone books so he could arrange a hotel room and a flight for Andrews. He was sitting in the kitchen when the police arrived.

Subsequent Events and Court Proceedings

Officers from the Hennepin County Sheriffs Department and the Corcoran Police Department responded to Andrews’ call. After arriving on the scene, some of the officers questioned Andrews and photographed her injuries and others questioned Glowacki. When the officers informed Glowacki that they would have to arrest him, he stated that he did not want to leave Andrews in his home. Glowacki then gave the officers $200 to pay for a hotel for Andrews and called the airlines and changed Andrews’ ticket so she could return to Dolthan the next day. The officers assisted Andrews in packing her clothing and took her to a hotel near the airport. Glowacki was arrested and taken to the Hennepin County Adult Detention Center.

Glowacki was subsequently charged with fifth-degree assault, domestic assault, and disorderly conduct in violation of Minn. Stat. §§ 609.224, subd. 1 (2000), 609.2242, subd. 1 (2000), and 609.72, subd. 1(3) (2000). Glowacki requested a jury trial, which was held August 13-18, 1999. At trial, Andrews testified for the state, along with the officers who responded to the 911 call. The state introduced into evidence the photographs of Andrews taken at Glo-wacki’s home on April 8, photographs of Andrews taken by her daughter on April 13, cards that Glowacki had sent to Andrews in February and March of 1999, the 911 intake form, and a tape of Andrews’ 911 call. Glowacki testified in his own defense and presented witnesses to discredit Andrews’ testimony and to show that she had attempted to alter the April 13 photos so her bruises would look darker.

Glowacki requested that the court give a jury instruction on self-defense, 10 Minn. Dist. Judges Ass’n, Minnesota Practice— Jury Instruction Guides, Criminal, CRIMJIG 7.06 (4th ed.1999). The state acknowledged that there was some evidence to support giving a self-defense instruction, but requested that CRIMJIG 7.08, the duty to retreat instruction, accompany it. The parties presented arguments to the court as to whether the duty to retreat instruction was applicable. Glo-wacki asserted that Andrews was an unwelcome guest in his home at the time of the attack. The state argued that there is always a duty to retreat when acting in self-defense in one’s home, based on the court of appeals’ opinion in State v. Carothers, 585 N.W.2d 64 (Minn.App.1998), rev’d, 594 N.W.2d 897 (Minn.1999). The district court expressed a belief that there was a more recent supreme court or court of appeals decision on the subject, but the state asserted that Carothers was still good law as of the beginning of July 1999. Glowacld’s counsel also was not aware of any new law on the subject. However, two months earlier, on June 17, 1999, we reversed the court of appeals’ decision in Carothers. State v. Carothers, 594 N.W.2d 897, 898 (Minn.1999).

Relying on the court of appeals’ version of Carothers, the district court stated to counsel that there was a duty to retreat in self-defense, regardless of whether the aggressor is an intruder or a resident of the home where the incident takes place. However, the court proposed a modification to CRIMJIG 7.08 by removing the words “retreat or.” Both parties agreed to this modification. After the jury was charged, the court gave the parties an opportunity to state any objections to the instructions as given. Glowacki did not object to the duty to retreat instruction.

The jury found Glowacki guilty on all counts. At the sentencing hearing, Glo-wacki made a motion for a new trial based on the fact that the court of appeals’ version of Carothers was not good law at the time of his trial. In denying the motion for a new trial, the court classified Andrews as “an invited guest” of Glowacki. The court also stated that from its reading of the syllabus of Carothers, the case did not apply because it dealt with defense of dwelling, not self-defense. Glowacki was then convicted of fifth-degree assault and sentenced to 90 days in the Hennepin County Adult Correction Facility, 45 of which were stayed for a year. The court also imposed a $700 fine, plus surcharges and the $125 domestic assessment fee, and denied a stay pending appeal and work release. Glowacki filed an expedited appeal with the court of appeals on the denial of a stay pending appeal and work release. The court of appeals remanded Glowacki’s motion for reconsideration. The district court again denied a stay pending appeal and work release and outlined reasons for its decision as requested by the court of appeals.

Glowacki then appealed his conviction and sentence to the court of appeals, asserting four arguments: (1) the jury’s guilty verdicts for assault and domestic assault should be overturned because the district court erred in instructing the jury that he had a duty to avoid danger in his own home while acting in self-defense; (2) the jury’s guilty verdict for domestic assault should not stand because Andrews did not fit the statutory definition of “family or household member”; (3) Glowacki was improperly restricted in his cross-examination of Andrews; and (4) the district court abused its discretion when it denied Glowacki work release privileges.’ Glo-wacki noted in his brief to the court of appeals that he finished serving the executed part of his sentence while his appeal was pending before the court of appeals.

The court of appeals reversed Glo-wacki’s assault and domestic assault convictions. State v. Glowacki, 615 N.W.2d 843 (Minn.App.2000). The court concluded that Glowacki and Andrews were co-residents because they were still sharing a residence even if they had decided to terminate their relationship. Id. at 845. The court went on to state that our opinion in Carothers held that there was no duty to retreat when acting in self-defense in one’s home against a co-resident aggressor. Glowacki, 615 N.W.2d at 844-45. It then concluded that the district court’s error in instructing the jury was “significant” and therefore Glowacki was entitled to a new trial. Id, At the end of its opinion, the court stated that despite Glowacki’s failure to object to the instruction, the court could reverse because the instructions were “misleading or confusing on fundamental points of law.” Id. The court did not address Glowacki’s other arguments.

On appeal to this court, the state and amicus curiae Minnesota County Attorneys Association (MCAA) urge us to conclude that the district court correctly instructed the jury that Glowacki had a duty to retreat. The state also argues that if it was error to give the duty to retreat instruction, the error was harmless and that Glo-wacki waived any challenge to the instruction by failing to object to it. Glowacki and amicus curiae Minnesota Association of Criminal Defense Lawyers (MACDL) urge us to conclude that there is no duty to retreat from the home when acting in self-defense against a co-resident.

I.

Glowacki did not object to the jury instructions as given at trial, but he asserts on appeal that his failure to object was due to the fact that the district court and the parties were operating under a misconception of the status of the law and therefore under Minn. R.Crim. P. 26.03, subd. 18(3), his motion for a new trial preserved the objection. Generally, a party waives the right to appeal a jury instruction by failing to object to it at trial. State v. Crowsbreast, — Minn. -, 629 N.W.2d 433 (Minn.2001). However, the situation here is different from that in which we apply the plain error analysis in that Glowacki objected to the error in a motion for a new trial, as opposed to first raising the issue on appeal. Id. In such situations, despite a defendant’s failure to object to a jury instruction at trial, “if the instruction contains an error of fundamental law or a controlling principle, a motion for a new trial adequately preserves the issue for appeal.” State v. McKenzie, 532 N.W.2d 210, 222 n. 12 (Minn.1995); Minn. R.Crim. P. 26.03, subd. 18(3). To conform to the requirements of Rule 26.03, subd. 18(3), the error that Glowacki asserts must be one of fundamental law or controlling principle.

Here, the district court based its jury instructions on a case we reversed. More importantly, when developing the instructions, the district court asserted that whether Andrews was a co-resident with Glowacki was irrelevant because in either case Glowacki would have a duty to retreat. This assertion was wrong. We held in Carothers that there is no duty to retreat from the home when acting in self-defense against an intruder. Carothers, 594 N.W.2d at 903. Because the jury instructions given were in error and that error was one of fundamental law or controlling principle, we hold that Glowacki’s motion for a new trial adequately preserved the jury instruction issue for appeal.

II.

Generally, the law mandates a duty to retreat if reasonably possible when acting in self-defense. Carothers, 594 N.W.2d at 899. However, in Carothers we held that when there is an intruder in one’s home, there is no duty to retreat when acting either in defense of dwelling or in self-defense. Id. at 903. We said: “Having concluded that the imposition of a duty to retreat would be improper in defense of dwelling situations, we see no sound reason to impose a duty to retreat when those same circumstances are characterized as self-defense within the home.” Id. In reaching this conclusion, we analyzed the differences between defense of dwelling and self-defense and noted the clear policy in the law to value life above property. Id. However, we did reserve the issue of whether there are situations when one would be required to retreat even though acting in self-defense in his home. Id. at 903-04. In stating this reservation, we referenced a situation in which the aggressor and the one claiming self-defense are co-residents. Id. at 904 n. 6.

Although we have not analyzed this question before, we upheld a district court’s instruction on the duty to retreat when the defendant claimed self-defense against a co-resident. State v. Hennum, 441 N.W.2d 793, 800 (Minn.1989). In Hen-num we affirmed without comment the duty to retreat instruction in the trial of a woman convicted of killing her husband in their home when she claimed self-defense. Id. at 800 n. 5. In State v. Morrison, 351 N.W.2d 359 (Minn.1984), we also affirmed without comment the duty to retreat instruction which was given at the trial of a woman accused of killing her boyfriend’s roommate, who had been an invited guest in her home earlier in the evening. 351 N.W.2d 359, 362 (Minn.1984). In Morrison, the defendant claimed to be acting in self-defense when her boyfriend’s roommate returned to her home. Id. These two cases appear to give an indication of our position on this issue; however, neither case provides any explanation or rationale for the decision. In Carothers we noted our “summary affirmance [in Hennum and Morrison ] of the duty to retreat in a self-defense case between co-occupants,” but by reserving the issue, we suggested that the question may be open. Carothers, 594 N.W.2d at 902, 904 n. 6. Nevertheless, the court of appeals interpreted Carothers to mean that we eliminated any duty to retreat when acting in self-defense in one’s home. Glowacki, 615 N.W.2d at 844-45.

We explained in Carothers that the concept of reasonableness is a critical part of self-defense. 594 N.W.2d at 904. To find that a defendant acted in self-defense, a jury must, as is illustrated by the self-defense statute, Minn.Stat. § 609.06 (2000), find that the defendant reasonably believed that force was necessary and that the defendant used only the level of force reasonably necessary to prevent the harm feared. State v. Pendleton, 567 N.W.2d 265, 269 (Minn.1997). In cases where death resulted from self-defense, a defendant must have reasonably feared that he was threatened with great bodily harm or death and that the use of force to prevent that harm was reasonable. State v. Boyce, 284 Minn. 242, 259-60, 170 N.W.2d 104, 115 (1969).

Part of our inquiry as to whether Glo-wacki’s actions were reasonable requires us to determine whether he had a duty to retreat from his home and, if so, whether a retreat was reasonably possible before “defending” himself. If Glowacki did not have such a duty, our reasonableness inquiry would focus only on whether his use of force was reasonable when faced with the threat Andrews presented. On the other hand, if Glowacki did have a duty to retreat, we must consider whether Glo-wacki could have safely retreated from his home and if we conclude that he could have, his use of force against Andrews would be unreasonable as a matter of law. The state and the MCAA urge us to conclude that there is a duty to retreat when acting in self-defense against a co-resident. Glowacki and MACDL urge us to conclude that there is no such duty.

The minority position among states that have considered the issue is that there is a duty to retreat from the home when acting in self-defense against a co-resident. Both the state and the MCAA argue that the only rule that is consistent with our earlier holdings on the duty to retreat in defense of dwelling claims is one mandating a duty to retreat when the aggressor is a co-resident. The result of such a rule would be that the only time one is not required to retreat would be when one is in one’s home and is defending oneself, others, or one’s dwelling against an intruder. In all other cases, the duty to retreat would apply.

The state argues that this position discourages violence among co-residents. It asserts that the value of human life and the importance of resolving disputes without violence has persuaded courts in many jurisdictions to maintain this duty to retreat. The Connecticut Supreme Court stated that “[t]his rule is in line with a policy favoring human life over the burden of retreating from the home, * * Shaw, 441 A.2d at 566. In reaching the same conclusion, the District of Columbia Court of Appeals explained that “all co-occupants, even those unrelated by blood or marriage, have a heightened obligation to treat each other with a degree of tolerance and respect. That obligation does not evaporate when one co-occupant disregards it and attacks another.” Cooper, 512 A.2d at 1006.

In response to these arguments, Glo-wacki and the MACDL urge us to conclude, as a majority of other states have, that there is no duty to retreat from the home when acting in self-defense. MACDL argues that public policy and the practical applications of the duty to retreat favor eliminating such a duty when one is acting in self-defense in one’s home against a co-resident. This approach establishes a bright-line rule, the administration of which is more precise because under this rule a person never has a duty to retreat from the home when defending oneself. Such a rule eliminates the need to define and differentiate between residents, nonresidents, invited guests, unwanted guests, etc., because the status of the aggressor is irrelevant. The present case illustrates the problems with these distinctions because Glowacki claims that Andrews was an intruder, the district court labeled her as an invited guest, and the court of appeals concluded that she was a co-resident. The state effectively concedes in its reply brief that any rule establishing different retreat rules based on the status of the aggressor will require the factfinder to determine the exact status of persons who appear somewhere in between a co-resident and an intruder. The state stated in its reply brief that “seeking to determine an assailant and victim’s ‘respective relationship to the dwelling in which the dispute arose, ⅜ ⅜ * ’ as an issue in assault cases is misguided at best. * * * The difficulty of application of such an approach is obvious. Uniformity of result, free from arbitrary or discriminatory decisions, could not be assured.”

There is another argument for the majority position that some states found convincing. It is that a no duty to retreat rule recognizes the realities facing those persons, mostly women, living in situations of domestic violence. When the New Jersey Supreme Court urged the legislature to reconsider the state’s statutory duty to retreat, it detailed the incompatibility of the duty to retreat with the ability of an abused spouse to protect herself. Gartland, 694 A.2d at 571. The Florida Supreme Court also considered this point in 1999 when it reversed its earlier position and eliminated the duty to retreat from the home. Weiand, 732 So.2d at 1051-57 (reversing State v. Bobbitt, 415 So.2d 724 (Fla.1982)). The Florida court explained that battered spouses often have retreated in the past, only to be subjected to an increased risk of harm from their abuser. Id. at 1053. Additionally, despite clear language in a retreat rule, the complexities of battered spouse syndrome may lead juries to believe that a spouse could have left an abusive spouse at some time, even if she could not have retreated on a particular occasion. Id. at 1054. Instructing a jury on a duty to retreat may therefore contradict a battered spouse defense. The Florida court also discounted the assertion that eliminating the duty to retreat will actually increase violence. Id. at 1056.

In addition to the increased threat of harm that abused spouses face when retreating from a domestic abuse situation, the duty to retreat also may force an abused spouse to choose between acting against the law or abandoning her children. Gartland, 694 A.2d at 570. In a domestic violence situation, if an abused spouse could safely retreat, but could not safely collect her children and retreat, the duty to retreat would require her to retreat alone if her children were not threatened with imminent harm. The result is that an abused spouse with children is forced to choose between staying in the home and acquiescing to the abuse, staying in the home and defending herself, knowing that she will not have a legal defense under the law, or abandoning her children and retreating.

Although the arguments and the circumstances here focus on self-defense, as we recognized in Carothers, self-defense in the home and defense of dwelling are often intertwined. Defense of dwelling is a defense based on property rights and thus is only available against one who does not have rights to the dwelling. State v. Hare, 575 N.W.2d 828, 832 (Minn.1998). The defense of dwelling defense is not appropriate when the party against whom the force is used has rights to the dwelling as well. Id. However, when the defense of dwelling defense is available, there is no duty to retreat from the home before using reasonable force. Carothers, 594 N.W.2d at 901.

Although derived from the same common law defense, self-defense in the home is slightly different from defense of dwelling. We require reasonable retreat in self-defense outside the home because the law presumes that there is somewhere safer to go — home. See id. at 900. But self-defense in the home is based on the premise that the home is “a place critical for the protection of the family.” Id. at 901. Requiring retreat from the home before acting in self-defense would require one to leave one’s safest place. As Justice Cardozo explained in People v. Tomlins, 213 N.Y. 240, 107 N.E. 496 (1914), “[i]t is not now and never has been the law that a man assailed in his own dwelling is bound to retreat. If assailed there, he may stand his ground and resist the attack. He is under no duty to take to the fields and the highways, a fugitive from his own home. * * * Flight is for sanctuary and shelter, and shelter, if not sanctuary, is in the home.” 107 N.E. at 497. The court in Tomlins went on to explain that the no retreat from the home rule was the same regardless of whether the aggressor was an intruder or a co-resident. Id.

We agree that when acting in self-defense in the home, a person should not be required to retreat from the home before using reasonable force to defend himself, regardless of whether the aggressor is also rightfully in the home. Thus we adopt the following rule: There is no duty to retreat from one’s own home when acting in self-defense in the home, regardless of whether the aggressor is a co-resident. But the lack of a duty to retreat does not abrogate the obligation to act reasonably when using force in self-defense. Therefore, in all situations in which a party claims self-defense, even absent a duty to retreat, the key inquiry will still be into the reasonableness of the use of force and the level of force under the specific circumstances of each case.

In the present case, the court gave a modified version of the duty to retreat instruction in CRIMJIG 7.08. The modified instruction did not include the word “retreat,” but instead instructed that Glo-wacki had a duty to “avoid the danger if reasonably possible.” While the court did not use the word “retreat” in the instruction, the thrust of the modified instruction could imply that Glowacki had a duty to leave his home if possible before resorting to the use of force in self-defense. The instruction given may not have been as damaging as if the word “retreat” had been used, but the instruction was still erroneous because Glowacki was in his home and he is not required to leave his home before defending himself. Therefore, we hold that the district court erred when it instructed the jury on self-defense in the home.

III.

Even if the jury instruction given at Glowacki’s trial was erroneous, he would only be entitled to a new trial if “it cannot be said beyond a reasonable doubt that the error had no significant impact on the verdict.” State v. Olson, 482 N.W.2d 212, 216 (Minn.1992). On review, it is necessary to view the jury charge as a whole. See State v. Anderson, 261 Minn. 431, 435, 113 N.W.2d 4, 7 (1962).

Here, the court did not actually use the word “retreat” in its instruction, although it did state that Glowacki had a duty to avoid the danger. As previously noted, the language in the instruction may still imply that Glowacki could not defend himself without first considering a means of avoiding the conflict, which could have suggested that he needed to flee his home.

In order to find Glowacki guilty of assault and domestic assault, the relevant element that the jury needed to find was that Glowacki intentionally inflicted or attempted to inflict bodily harm on Andrews. Minn.Stat. §§ 609.224, subd. 1(2), 609.2242, subd. 1(2). The law of self-defense provides that Glowacki would not be guilty if he used reasonable force against Andrews to resist the commission of an offense against him. Minn.Stat. § 609.06, subd. 1(3). Even if there is no duty to retreat, an individual may only use reasonable force based on the circumstances of the situation. Carothers, 594 N.W.2d at 904. That one does not have a duty to retreat does not mean that it is acceptable to use whatever force is desired to repel an attack. Id. The absence of a duty to retreat affects the duty to act in a reasonable manner only because a defendant’s use of force in self-defense may be reasonable even if the defendant does not leave his home. Id. A defendant claiming self-defense may use a level of force that is reasonable and only when there is no reasonable alternative to the use of force. Id.

At trial the jury heard conflicting testimony as to what happened on the evening of April 8, 1999. Both Glowacki and Andrews made statements that are inconsistent with other evidence presented. Andrews stated that Glowacki kicked her between 50 and 100 times, although the officers who responded to her 911 call acknowledged that her injuries were not consistent with such a brutal attack. On the other hand, Glowacki asserted that he only pushed Andrews to the floor twice. The photographs of Andrews’ injuries show bruises on her legs, feet and hand that could possibly have come from two falls to the floor. However, the photos also depict red marks on her neck, which are not explained under Glowacki’s scenario of events. Glowacki testified that Andrews struck him on the shoulder and that he feared that she had a weapon behind her back; however, none of the officers who responded to the scene could recall Glowacki mentioning that Andrews had hit or threatened him.

Generally, a reasonableness determination is properly made by the finder of fact — in this case, the jury. Cf. Krafft v. Hirt, 260 Minn. 296, 301, 110 N.W.2d 14, 18 (1961). However, when no reasonable mind could draw an adverse inference, the question may be decided as a matter of law. Id. Taking Glowacki’s testimony as true, Glowacki kicked Andrews to the floor after she hit him “in the shoulder a little bit.” Glowacki then pushed Andrews to the floor after he “sensed” her behind him and “saw” something moving toward his head. Further, Glowacki offered no explanation for the injuries to Andrews’ neck even though they are quite apparent in the photos taken by the police. In light of the force Andrews used, the level of force Glo-wacki responded with was unreasonable. We conclude as a matter of law that even if the jury accepted Glowacki’s version of events, no reasonable juror could conclude that his use of force to defend himself was reasonable. Therefore, we conclude beyond a reasonable doubt that the erroneous instruction did not have a significant impact on the jury’s verdict because Glo-wacki’s use of force did not meet the reasonableness requirement of self-defense. We hold that the district court erred in instructing the jury, but the error was harmless and thus, the jury’s guilty verdicts for assault and domestic assault are reinstated. We reverse the court of appeals, reinstate the jury’s verdicts, and remand to the court of appeals for consideration of the other issues Glowacki raised on appeal.

Reversed and remanded.

GILBERT, J., took no part in the consideration or decision of this case.

      . The modified version of CRIMJIG 7.08, as given to the jury, read, "The legal excuse of self-defense is available only to those who act honestly and in good faith and this includes the duly to [retreat or] avoid the danger if reasonably possible.” (Omitted words in brackets.)

      . The last sentence in Minn. R.Crim. P. 26.03, subd. 18(3), states: "An error in the instructions with respect to fundamental law or controlling principle may be assigned in a motion for a new trial though it was not otherwise called to the attention of the court.”

      . See Linda A. Sharp, J.D., Annotation, Homicide: Duty To Retreat Where Assailant and Assailed Share the Same Living Quarters, 67 A.L.R.5th 637 (1999).

      . See Sharp, supra note 3.

      . Minnesota Statutes § 609.224, subd. 1(2), defines the crime of assault in the fifth degree and states: "Misdemeanor. Whoever does any of the following commits an assault and is guilty of a misdemeanor: * * ⅜ (2) intentionally inflicts or attempts to inflict bodily harm upon another.”

        Minnesota Statutes § 609.2242, subd. 1(2), defines the crime of domestic assault and states: "Misdemeanor. Whoever does any of the following against a family or household member as defined in section 518B.01, subdivision 2, commits an assault and is guilty of a misdemeanor: * * ⅜ (2) intentionally inflicts or attempts to inflict bodily harm upon another.”


text:
    In re Petition for DISCIPLINARY ACTION AGAINST David A. SINGER, an Attorney at Law of the State of Minnesota.
    No. C9-00-163.
    Supreme Court of Minnesota.
    July 17, 2001.
   ORDER

The Director of the Office of Lawyers Professional Responsibility filed a petition for disciplinary action against respondent David A. Singer, on November 4, 1999, the petition was heard by a court-appointed referee. The referee’s findings of fact, conclusions of law and recommendation for discipline were filed with this court on July 26, 2000. Respondent stipulated to temporary suspension and we entered an order suspending respondent’s license to practice law. In re Disciplinary Action Against Singer, 614 N.W.2d 734 (Minn.2000). The Director has now filed a supplementary petition for disciplinary action alleging that respondent has committed further professional misconduct, namely, respondent failed to timely file his state and federal individual income tax returns for 1996, 1997 and 1998, and was convicted of failing to file the federal returns, in violation of Minn. R. Prof. Conduct 8.4(b). Respondent has also been convicted in state court of felony theft for his conduct in misappropriating funds placed in his trust account, in violation of Minn. R. Prof. Conduct 8.4(b).

Respondent admits that his conduct violated the Rules of Professional Conduct, waives his rights pursuant to Rule 14, Rules on Lawyers Professional Responsibility (RLRP). He entered into a stipulation with the Director wherein they jointly recommend that the appropriate discipline for the conduct alleged in the petition and supplementary petition is an indefinite suspension pursuant to Rule 15, RLPR, with no right to apply for reinstatement for three years. The reinstatement hearing provided for in Rule 18, RLPR, is not waived. Reinstatement is conditioned upon:

1. Successful completion of the federal and state criminal probations;

2. Compliance with Rule 26, RLPR;

3. Successful completion of the professional responsibility examination under Rule 18(e), RLPR;

4. Satisfaction of the continuing legal education requirements under Rule 18(e), RLPR;

5. Proof of timely filing of respondent’s federal and state income tax returns for calendar years after 2000 and payment of the income taxes due for prior years, or a payment arrangement satisfactory to the taxing authorities;

6. Proof of psychological fitness to practice law; and

7. Payment of costs in the amount of $900 plus interest and disbursements under Rule 24(d), RLPR.

We have independently reviewed the file and approve the recommended disposition.

IT IS HEREBY ORDERED that respondent David A. Singer is indefinitely suspended from the practice of law, with no right to apply for reinstatement for three years, and that reinstatement be conditioned on the agreed-upon terms set forth above. Respondent shall pay $900 plus interest in costs and disbursements.

BY THE COURT

Paul H. Anderson Associate Justice


author: Edward C. Stringer Associate Justice

text:
    Diane M. QUAST, Relator, v. PARK MANUFACTURING CORPORATION, and State Fund Mutual Insurance Company, Respondent.
    No. C8-01-729.
    Supreme Court of Minnesota.
    July 25, 2001.
    Anne Kevlin, Lynn, Scharfenberg & Associates, Minneapolis, for appellant.
    Richard S. Eskola, Moore, Halsey & Eskola, Fridley, for respondent.
   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 April 3, 2001, be, and the same is, affirmed without opinion. See Minn. R. Civ.App. P. 136.01, subd. 1(b).

Employee is awarded $600 in attorney fees.

BY THE COURT

Edward C. Stringer Associate Justice