author: PER CURIAM.

text:
    In re Petition for DISCIPLINARY ACTION AGAINST David L. BREHMER, Attorney at Law of the State of Minnesota.
    No. C3-00-529.
    Supreme Court of Minnesota.
    Jan. 4, 2001.

      Edward J. Cleary, Director, Timothy M. Burke, Office of the Lawyers Professional Responsibility, St. Paul, MN, Attorneys for Appellant.
    Philip G. Villaume, Philip G. Villaume and Associates, Edina, MN, Attorney for Respondent.
   OPINION

PER CURIAM.

On March 20, 2000, the Director of the Office of Lawyers Professional Responsibility served the respondent, David L. Brehmer with a petition for disciplinary action alleging that Brehmer had not complied with the conditions of his probation because he committed acts of professional misconduct while on probation. Brehmer failed to respond within the 20-day period allowed for responses. As a result, we ordered that the allegations contained in the petition were deemed admitted, and oral arguments were scheduled for June 1, 2000. Written proposals for appropriate discipline were due to us by May 5, 2000, but on May 4, 2000, Brehmer filed a motion requesting that the May 5 deadline be extended. We extended the deadline to May 15, 2000.

On May 15, 2000, Brehmer filed a motion requesting that we vacate the default order deeming admitted the allegations in the petition for disciplinary action or, in the alternative, to allow Brehmer to present mitigation evidence at oral argument. The Director opposed the motion, but asked, in the alternative, that we assign the matter to a referee for an evidentiary hearing. The Director also asked us to temporarily suspend Brehmer until final resolution of this matter.

On May 24, 2000, we struck the scheduled oral argument from our calendar, and referred the matter to a referee to make findings of fact, conclusions of law, and recommendations for disposition. The hearing was limited to an inquiry into any additional allegations of misconduct not contained in the petition and the presence of any mitigating or aggravating factors. In addition, we denied Brehmer’s request to reverse the default order deeming the allegations of the March 16 petition admitted, and we denied the Director’s request for temporary suspension, and instead ordered that Brehmer remain on supervised probation until resolution of this matter.

On June 29, 2000, the Director filed a supplementary petition for disciplinary action alleging that Brehmer committed acts of professional misconduct in addition to those alleged in the Director’s March 16, 2000 petition. Brehmer filed an answer on July 27, 2000, and a hearing was held on July 28, 2000, before the referee. On August 10, 2000, the referee issued his recommendation for discipline finding that Breh-mer had committed the acts alleged in both of the Director’s petitions and concluding that Brehmer’s conduct constituted multiple violations of Minn.R.Prof. Conduct 1.1, 1.3, 1.4, 1.15, 1.16(d), 3.1, 3.2, 3.3(a)(1), 3.4(c), 3.4(d), 3.5(g), 4.1, 5.5(a), 8.1(a)(3), 8.4(c), and 8.4(d). The referee also concluded that Brehmer violated the terms of his probation and Rule 25 of the Rules of Lawyers Professional Responsibility (RLPR). The referee rejected Breh-mer’s mitigation claims of psychological disorder and other family circumstances and recommended a disciplinary sanction of indefinite suspension for a minimum of 2 years, compliance with Rule 26, RLPR, and payment of $900 to the Director in costs plus disbursements under Rule 24, RLPR.

David L. Brehmer was admitted to practice law on October 27, 1989, and he worked as a law clerk for a law firm until January 1990. Brehmer left that firm to work as a law clerk for several Hennepin County judges. Then, in August 1992, Brehmer founded his own law office where until recently he practiced primarily criminal, family, and immigration law.

Brehmer has been sanctioned six times since 1995 for repeated violations of the Minn.R.Prof. Conduct. Brehmer was first issued an admonition on September 14, 1995, for failing to timely submit a requested informational statement, failing to inform his client that the client’s case would be dismissed if an informational statement was not filed, and for withdrawing from representation without telling his client that the client’s case was already beyond the dismissal deadline for filing the statement. Then, on February 23, 1996, Brehmer was issued two admonitions. The first was for failing to clearly communicate his billing practices to his client, failing to return his client’s phone calls, failing to abide by his client’s decision regarding litigation strategy, failing to communicate adequately, and failing to pursue his client’s matter diligently. The second was for failing to pursue his client’s matter diligently, failing to return his client’s telephone calls, failing to communicate to the client clearly regarding the status of the client’s claim, and asserting a lien on the claim for fees in an unrelated matter.

Brehmer’s fourth sanction was issued on September 24, 1997, when he was placed on private probation for 2 years because he failed to pursue his clients’ matters and because he failed to communicate with his clients. On May 14, 1999, Brehmer was sanctioned a fifth time when he was admonished for pursuing frivolous litigation, failing to file a court-ordered reply brief and a written response addressing sanctions, and failing to draft appellate briefs pursuant to court rules. Brehmer’s sixth sanction was issued on May 24, 1999, when his private probation was extended because he failed to handle a client’s case with the required thoroughness and preparation, failed to handle a client’s case in a timely fashion, failed to communicate adequately with the client, and failed to identify open cases on the open case inventory he was required to provide monthly to his probation supervisor.

On August 5, 1999, the Director began investigating new complaints filed against Brehmer by his former clients. Brehmer did not respond to any of the Director’s requests for information, so on March 20, 2000, the Director served Brehmer with a petition for disciplinary sanctions. The petition consisted of new allegations of misconduct, violations of the terms of Breh-mer’s probation, and failure to cooperate fully with the Director’s office in its efforts (1) to investigate complaints against Breh-mer and (2) to monitor Brehmer’s compliance with the terms of his probation. The Director’s March 2000 petition and the supplemental June 29, 2000 petition provided the basis for this case and alleged various acts of misconduct related to the following client matters and probation violations. We deemed the following acts of misconduct admitted, all of which were contained in the Director’s March 2000 petition.

The Green Matter

The first count of misconduct involved Brehmer’s representation of A.G. in a child custody and visitation proceeding during November and December 1998. The motion papers requested an increase in Green’s custody and visitation rights, but Brehmer’s argument at the hearing was that custody should be granted to Green’s parents. A prior court order precluded Green’s parents from an award of custody rights, but Brehmer continued to argue this theory of the case, and he presented witnesses to establish the appropriateness of Green’s parents as custodians. Even though the district court advised Brehmer that it would not grant custodial rights to Green’s parents, Brehmer continued to argue this frivolous theory.

The referee also noted that the district court found that Brehmer and his client attempted to perpetrate fraud on the court by making false statements. At a pretrial scheduling conference, Brehmer denied the existence of medical records, including those specifically related to his client’s drug-related hospitalizations. During trial, opposing counsel discovered those records, but the trial record is unclear whether Brehmer actually knew that the medical records existed. Brehmer’s client then denied that the medical records were hers because they were not written in her handwriting and because there are other people living in the area with the same name.

Moreover, Brehmer violated the district court’s orders. The court ordered that all applications for any kind of relief be brought before Judge Patrice Sutherland. But Brehmer drafted documents seeking informa pauperis status for his client and submitted the documents to the signing judge-who was not Judge Sutherland. The signing judge granted the motion, but it was later vacated after the signing judge became aware of Brehmer’s deception. Even after being reminded that all requests for relief were required to be brought before Judge Sutherland, Breh-mer submitted a second informa pauperis request to yet another signing judge.

In addition, Brehmer did not comply with the district court’s orders regarding deadlines for providing witness and exhibit lists. Brehmer also attempted to add witnesses during the hearing. Many of these witnesses were to provide cumulative or irrelevant testimony. When the court sustained objections prohibiting testimony from these witnesses, Brehmer acted belligerently and was rude and insulting to the court and opposing counsel. Brehmer was not prepared for trial, and he repeatedly violated the sequestration order that was in effect during the hearing by beginning direct examination with a synopsis of the previous witnesses’ testimony. Brehmer also assisted Green’s attempt to hide her children by advising Green that her ex parte order for protection from the custodial father authorized Green to hide her children from their custodial father.

After the hearing the district court found Brehmer’s conduct was improper, and he was sanctioned $48,133.65. Breh-mer appealed on both his and his client’s behalf, but he failed to file a proper statement of the case with the notice of appeal. Brehmer did not order a transcript within the required 10 days after the appeal was filed. The court extended the deadline, but Brehmer did not reply or comply with the new deadline, and the court of appeals dismissed the appeal. Brehmer’s subsequent motion to reinstate the appeal was denied, and Brehmer’s sanctions remain unpaid.

The Mattingly Matter

The second count of misconduct involved Brehmer’s representation of Mark and Diane Mattingly during April 1997, in a dispute arising out of their purchase of a house in Wisconsin. Brehmer was not, and is not, licensed to practice law in Wisconsin, but he accepted a $2,500 retainer and then attempted to commence the action by serving the summons and complaint on the defendants. Under Wis.Stat. § 801.02 (1996), the summons and complaint must first be filed with the clerk of court. Because the lawsuit was commenced improperly, two of the defendants filed a motion to dismiss. The district court did not grant the motion, but instead issued an order in July 1997, setting new deadlines for Brehmer to serve the summons and complaint properly. Brehmer failed to meet these new deadlines, and the same two defendants again filed a motion to dismiss and an amended motion to dismiss. Brehmer did not respond, and those two defendants were eventually dismissed.

In addition, during the time when Breh-mer assoch'-'.-’d « c - “ounsel, he failed to timely respond to the remaining defendants’ requests for admissions and interrogatories. Brehmer also failed to correctly identify expert witnesses. He failed to properly respond to a motion to compel discovery, and when he finally did respond to the defendants’ requests for admissions and interrogatories, the answers were not signed under oath. Brehmer failed to meet other discovery deadlines and failed to attend the depositions of expert witnesses. On June 12, 1998, local counsel filed a motion to withdraw from representation, and Brehmer did not retain other local counsel.

On August 28, 1998, the court granted the remaining defendants’ motions to dismiss because Brehmer failed to comply with the court’s discovery orders, and because Brehmer exhibited egregious behavior in general. In a separate order, the court stated that Brehmer’s misconduct was consistent throughout the case, and he repeatedly violated the discovery rules. The Mattinglys paid Brehmer $1,675 for his representation, but he never provided the Mattinglys with a bill or an accounting of the retainer funds they paid to him.

The Williams Matters

The third count of misconduct involved Brehmer’s representation of Dennis Williams in 1998. Brehmer was hired to assist Williams in an action he had commenced as a pro se litigant. During discovery, Brehmer failed to provide discovery responses, and when opposing counsel filed a motion to compel discovery, Breh-mer failed to notify Williams or send Williams copies of the motion. Brehmer also failed to inform Williams of the hearing date for the motion.

Brehmer filed a motion to withdraw in December 1998, while Williams’ summary judgment motion was pending. Brehmer failed to serve the required notice of his motion on Williams, and he failed to inform Williams of the motion or the hearing date. Brehmer stated in his motion that his lack of communication with Williams resulted from Williams’ unavailability, and Breh-mer’s motion to withdraw was granted. Brehmer billed Williams, but Brehmer failed to substantiate his billing.

The fourth count of misconduct involved Brehmer’s representation of Dennis Williams in another matter beginning in February 1996. Williams retained Breh-mer to represent him in an action against the City of Minneapolis in a wrongful arrest and harassment matter. Brehmer did not deposit Williams’ -$1,000 retainer into a trust account. Brehmer sent correspondence regarding Williams’ matter to the City of Minneapolis in March and April 1996 and in March 1997, but otherwise failed to work on the matter even though he told Williams that he was pursuing the matter. Brehmer did not return any of the retainer.

The Wimler Matter

The fifth count of misconduct involved Brehmer’s representation of Elaina Wim-ler, which began on February 8, 1999. Wimler retained Brehmer to bring a motion on her behalf to change the custody agreement regarding her minor children. She paid Brehmer a $2,500 retainer fee, but Brehmer did not place the retainer into a trust account. In preparation for her hearing, Brehmer instructed Wimler to sign a blank signature page, which Brehmer then notarized. Brehmer attached the blank signature page to a draft affidavit he prepared, and he submitted the document to the court. Wimler never had the opportunity to correct Brehmer’s mistakes or inaccuracies. After mandatory mediation, Brehmer put the matter back on for hearing and obtained another hearing date, but he failed to support his motion with additional papers and has declined Winder's request to prepare a supplemental affidavit for Wimler’s signature. Brehmer has not provided Wimler with an accounting of her retainer, nor has he refunded any of the retainer.

Brehmer’s Probation Violations

The sixth count of misconduct related to the conditions of Brehmer’s probation. One condition of Brehmer’s probation required him to cooperate with any investigation into alleged misconduct. On August 5,1999, the Director notified Brehmer of the investigation of the complaint regarding Brehmer’s conduct in the Green matter and requested information and a response from Brehmer within 14 days. Brehmer was also notified of the complaints and subsequent investigations into his conduct in the Williams, Mattingly, and Wimler matters. Brehmer did not respond to any of the Director’s many requests for information within the time frame requested. Brehmer has since responded to some of the Director’s requests, but his responses have been incomplete.

Another condition of Brehmer’s probation is that he is required to regularly submit a case list of active files to his probation supervisor. The Director learned that Brehmer last provided his probation supervisor with this list when Brehmer’s probation was extended on May 24, 1999. The Director notified Brehmer of the case list investigation and requested a response three times, but Brehmer failed to respond. The Director also learned that Brehmer’s attorney registration fees were unpaid from January 1, 2000 to February 29, 2000, that he was engaged in the practice of law while suspended, and that another complaint was filed against Breh-mer by Olubunmi Adebanjo. Brehmer failed to respond to the Director’s inquiries into these matters until July 11, 2000, which was 4 months late.

These six counts of misconduct provided the basis for the Director’s March 2000, petition for disciplinary sanctions. The following two client matters in the Director’s supplementary petition allege the same types of misconduct as the original petition — neglect, noncommunication, improper notarization, misrepresentation to the court, failure to abide by court rules and orders, and unauthorized practice of law.

The Craig Matter

Brehmer represented Karen Craig in a post-dissolution proceeding during December 1998. Brehmer instructed Craig to sign a blank signature page, which Breh-mer later attached to an affidavit he prepared. Brehmer also instructed Craig to sign a responsive affidavit that she did not review. Both documents were filed with the court.

The Krinhop Matter

Nancy Krinhop retained Brehmer to represent her in an eviction/unlawful de-tainer proceeding begun by Dennis Strid in July 1999, and also in a related civil matter. Brehmer failed to properly serve the parties involved, and on February 16, 2000, the housing court ordered that issuance of a writ of restitution allowing Strid to evict Krinhop would be stayed for 20 days to allow Krinhop to properly serve Strid. If Krinhop properly served Strid within the 20-day period, the court would extend the stay until final resolution of the separate civil matter.

On March 15, 2000, the day after the court’s 20-day deadline, Brehmer called the court and told the judge’s law clerk that Strid’s attorney consented to service by mail and Brehmer mailed the complaint within the 20-day period. Brehmer’s statement was false, but the court relied on his false statement and voided the writ. On March 28, 2000, Brehmer had Strid properly served. The court conducted a hearing on March 30, 2000 and ordered Brehmer to provide proof that he properly served Strid within the original 20-day period. Brehmer did not respond, and the court vacated the March 16 order and allowed Strid to enforce the writ of restitution allowing Strid to evict Krinhop.

At the referee’s July 28, 2000 hearing, Brehmer presented evidence that he suffers from depression. He testified that since before 1980 he has frequently been in therapy for depression. Brehmer’s psychologist, Robert Subby, testified that he was Brehmer’s therapist off and on since 1992. Subby testified that he currently sees Brehmer individually once each week, and Brehmer also attends an every-other-week men’s support group. Subby characterized Brehmer’s two psychological disorders as a dysthemic disorder and a generalized anxiety disorder. Subby defined Brehmer’s dysthemic disorder as “an overshadowing sense of blueness, downness, glum.” Subby defined Brehmer’s generalized anxiety disorder as “anxiety, a general sense of fear, of difficulty concentrating, reactivity, * ⅜ * and a general fear that, you know, things are not going to go away.” Subby recommended psychiatric care and medication for Brehmer. Subby then testified that Brehmer began improving after he began taking antidepressant and anxiety medication. Subby also testified that Brehmer’s condition was never at the level of a “disability as a category of diagnosis,” and that Brehmer’s condition was also never “chronic depression.”

On cross-examination, Subby again testified that Brehmer was affected by his psychological disorder, but his disorder was not disabling. Subby also testified that Brehmer continues to blame his misconduct on the stressors in his life — the dissolution of his marriage, the custody battle over his daughter, and the current professional misconduct investigation — -and still has not accepted responsibility for his actions. Stubby also testified that Breh-mer’s “problems with timeliness” began improving sometime in April 2000.

In addition to Subby’s psychological testimony, Dr. Lee Beecher offered psychiatric testimony. Beecher conducted a psychiatric evaluation of Brehmer and then testified for Brehmer. After discussing Brehmer’s marital, family, financial, and professional problems, Beecher concluded that Brehmer suffered from “dysthymia or a chronic, moderately severe depression, which probably I felt was being partially treated with the medications, but the quality of his psychotherapy generally was pretty good.” Beecher testified that he rated Brehmer as a 65 on the standardized Global Assessment of Functioning Scale (GAF). Beecher explained that a GAF score of 65 indicated moderate severity. Beecher testified that he gave Brehmer a GAF score of 65 because Brehmer “is able to function pretty well, but he is having some dysfunction. He’s probably able to get along. He’s sort of a walking wounded. He’s not down and out. He’s not in the hospital. On the other hand, he’s not functioning as well as he might.”

On cross-examination, Beecher again testified that when he examined Brehmer, Brehmer’s dysthymia was moderately severe, which meant that he was functioning well and his symptoms were mild with some difficulty in social, occupational, or school functioning. Beecher further testified that Brehmer’s medication was appropriate for the symptoms Brehmer exhibited. The only adjectives Beecher used to describe Brehmer’s condition were significant and chronic, which Beecher defined as long lasting.

After considering all the testimony, but before recommending an appropriate disciplinary sanction, the referee considered Brehmer’s three mitigation arguments. The referee found that Brehmer’s first argument that his workload and secretarial turnover led to his misconduct was without merit. The referee also found that Breh-mer’s divorce and child custody proceedings were not sufficient to mitigate his misconduct. In addition, the referee found that Brehmer did not meet his burden of proof to show that his psychological disorder mitigated his misconduct because Brehmer did not prove by clear and convincing evidence each of the four elements of the test we articulated in In re Weyhrich, 339 N.W.2d 274, 279 (Minn.1983).

The referee next considered certain aggravating factors, including the fact that Brehmer’s misconduct was consistent with misconduct for which he had previously been sanctioned. The referee found that Brehmer’s misconduct had been ongoing over an extended period of time, and Breh-mer had committed multiple acts of misconduct. In addition, the referee found that Brehmer’s misconduct continued after the petition for disciplinary action was filed, after Brehmer was represented by counsel in this matter, and after the referee was appointed. Finally, the referee found that Brehmer has not kept his probation supervisor completely informed of the cases he was handling, and he has not consistently implemented his probation supervisor’s recommendations.

On August 10, 2000, the referee issued his recommendation for discipline, and Brehmer ordered a copy of the hearing transcript. Brehmer appeals arguing only that the referee failed to consider mitigating factors, including Brehmer’s history of depression and various other personal issues that affected Brehmer’s ability to practice law within the bounds of the Minnesota Rules of Professional Conduct.

The Director has the burden of proof in disciplinary proceedings and must meet a clear and convincing evidence standard. See In re Complaint Concerning Miera, 426 N.W.2d 850, 853 (1988). In determining whether the Director has met the burden of proof, we afford great weight to a referee’s findings of fact and conclusions of law. See In Matter of Application for Discipline of Schmidt, 402 N.W.2d 544, 545 (1987). Because we deemed the allegations in the Director’s March 2000 petition admitted, and because Brehmer did not appeal, he has no right to challenge those findings. But, because Brehmer has ordered a transcript of the disciplinary hearing, the referee’s findings regarding the matters asserted in the Director’s supplemental petition and the matters asserted by Brehmer as mitigating factors are not conclusive. See Rule 14(e), RLPR. The referee’s conclusions of law are also not conclusive. See Rule 14(e), RLPR; see also In re Petition for Disciplinary Action against Harry N. Ray, 610 N.W.2d 342, 345 (2000).

Brehmer challenges the referee’s conclusion that his psychological disorder and personal problems do not mitigate his sanctions. An attorney who raises a psychological disability as a mitigating factor to sanctions for professional misconduct has the burden to prove, by clear and convincing evidence, the elements outlined by the court in Weyhrich, 339 N.W.2d at 279. In Weyhrich, we examined the relationship between the misconduct and the psychological disorder to determine whether the disorder was such that it mitigated Weyhrich’s misconduct. See id. at 279.

The referee considered the test we articulated in Weyhrich and determined that Brehmer’s disorder was not serious and therefore did not mitigate his misconduct. Our examination of the record indicates that the referee’s determination is supported by facts in the record. However, we must determine the appropriate sanction in light of the referee’s and the Director’s recommendation of indefinite suspension for a minimum of 2 years and compliance with Rule 24, RLPR and Rule 26, RLPR.

Although we afford great weight to the referee’s recommendation, we alone bear the final responsibility to determine what discipline is appropriate. See In re Klein, 442 N.W.2d 317, 321 (1989). For guidance in determining the appropriate sanction, we have consistently turned to cases involving similar misconduct. See In re Petition for Disciplinary Action Against Madsen, 426 N.W.2d 434, 436 (1988). We determine the appropriate sanction in light of the purpose of attorney discipline to protect the public and the legal profession and to guard the administration of justice by considering: “(1) the nature of the misconduct; (2) the cumulative weight of the rule violations; (3) the harm to the public; and (4) the harm to the legal profession.” Id. Mitigating and aggravating circumstances are also considered. See In re Petition for Disciplinary Action Against Marlon O. Haugen, 543 N.W.2d 372, 375 (1996).

In similar attorney discipline cases we have balanced the equities and imposed an indefinite suspension for a minimum of 1 or 2 years and have required compliance with Rule 18, RLPR and Rule 24, RLPR. See In re Petition for Disciplinary Action Against James T. Hanvik, 609 N.W.2d 235, 242 (2000); In re Petition for Disciplinary Action Against Bradley K. Anderson, 569 N.W.2d 923, 928 (1997); In re Petition for Disciplinary Action Against Scott E. Selmer, 568 N.W.2d 702, 705 (1997). Brehmer’s misconduct is not as egregious as the misconduct in Hanvik or the misconduct in In re Petition for Disciplinary Action Against Pyles, 421 N.W.2d 321, 323-24 (1988). Both Hanvik and Pyles involved similar medical and psychological mitigation issues, but those cases had numerous or substantial misappropriations of funds, among other allegations, warranting a 2-year suspension. See Pyles, 421 N.W.2d at 325; Hanvik, 609 N.W.2d at 240-42. Also, in Hanvik, we held that because Hanvik suffered from a moderate psychological disorder, his disorder did not mitigate his misconduct. See Hanvik, 609 N.W.2d at 240.

While not being the sole cause of the misconduct, some, but not all, of Breh-mer’s behavior can be associated with his psychological disorder, which was diagnosed as being “significant,” “chronic,” and “moderate to severe.” Uncontradicted testimony indicated Brehmer was having some significant dysfunction and difficulty in social and occupational settings. There was further evidence that since resuming therapy and taking prescribed medications, Brehmer was making progress but had not yet reached the level he was at several years ago. According to Breh-mer’s therapist, the next 18 months will be crucial to his recovery. The record thus indicates that Brehmer’s disorder is something more than moderate in severity. However, the nature of Brehmer’s misconduct and the cumulative weight of the related public rule violations over many years has caused harm to the public and to the legal profession.

Accordingly, based on all of the facts presented, we indefinitely suspend Brehmer from the practice of law in Minnesota for a minimum of 1 year. We will not consider reinstatement until Breh-mer provides adequate psychological or other medical evidence establishing that he has no physical or psychological problems that would impair his ability to practice law competently, diligently, and within the rales of conduct for attorneys. In addition, we will not consider reinstatement until Brehmer completes the Multistate Professional Responsibility Exam with a passing examination score. Brehmer must comply with Rule 24, RLPR and pay to the Director $900 in costs plus disbursements. Finally, Brehmer must also comply with the requirements for reinstatement under Rule 18, RLPR.

So ordered.

      . Although Brehmer is not licensed to practice law in Wisconsin, he retained local counsel in September 1997. The record does not indicate wheLiu : counsel was or is licensed to practice ,n Wisconsin.


source: Caselaw Access Project

author: CRIPPEN, Judge

license: Public Domain

text:
    STATE of Minnesota, Appellant, v. Jeffrey Douglas LAW, Respondent.
    No. C5-00-998.
    Court of Appeals of Minnesota.
    Nov. 15, 2000.
    Review Denied Dec. 20, 2000.

      Mike Hatch, Attorney General, and Susan Gaertner, Ramsey County Attorney, Jeanne L. Schleh, Assistant County Attorney, St. Paul, MN, for appellant.
    Thomas C. Plunkett, Mark K. Thompson, Dudley and Smith, P.A., St. Paul, MN, for respondent.
    Considered and decided by WILLIS, Presiding Judge, CRIPPEN, Judge, and HOLTAN, Judge.

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

   OPINION

CRIPPEN, Judge

Appealing the trial court’s stay of sentence in an attempted-murder case, the state argues that the court erred by imposing a sanction that is “strongly disproportional to the severity of the crime,” and takes account of circumstances — namely rehabilitation since committing the crime — that are neither substantial nor compelling enough to furnish grounds for departure.

It is the collegial conclusion of the judges who have heard this case that the matter must be remanded for imposition of an executed sentence.

FACTS

On October 25, 1999, respondent Jeffrey Law entered the home of his estranged wife, Erika Law. The couple began arguing and respondent attacked Erika, who was holding two infants in her arms at the time — the couple’s five-month-old son and a six-month-old child Erika was taking care of as part of her daycare business. Erika tried to call 911, but respondent grabbed the phone out of her hands, ripping the cord out of the wall. Respondent told Erika he was going to kill her and began strangling her with his hands and then with a bathrobe cord. He dragged her down the stairs to the basement and strangled her to the point of unconsciousness. Before respondent left the home, he placed the two infants on a bed in the basement and checked to determine that Erika was still alive. When Erika came to, she could not stand or walk, but eventually she was able to reach the neighbors’ home, where the neighbor called 911. Erika suffered a concussion and severe bruising on her face and neck. Due to her loss of consciousness, she was confused and had trouble remembering the details of what had occurred.

Soon after the incident, respondent returned to his home and called his parents, telling them he had choked Erika. He also threatened to commit suicide. Respondent’s mother called 911, and police arrested respondent immediately thereafter. He subsequently pleaded guilty to attempted second-degree murder.

At the sentencing hearing in March 2000, the court heard the testimony of numerous witnesses stating they had witnessed a notable improvement in respondent’s attitude and behavior since his release from jail on bail in November 1999. Respondent’s father testified that his son had become a “whole different person,” explaining respondent was now honest, trustworthy, dependable, and reliable. Likewise, respondent’s personal counselor testified he had never seen, in the four years he had worked in his field, the level of self-accountability and honesty he had seen in respondent since his release from jail.

Ultimately, after openly wrestling with the competing considerations in what the trial court rightfully found to be an unusual case, the court determined that respondent should be sentenced to the maximum prescribed sentence of 20 years — an upward durational departure — but stayed execution of the sentence and placed respondent on probation for 20 years, ordering him to comply with various conditions. The Minnesota Sentencing Guidelines call for an executed sentence of 12 years and 9 months for appellant’s offense.

ISSUE

Does the trial court’s sentence come within the broad range of its discretion?

ANALYSIS

A trial court may depart from the sentencing guidelines if it specifies “substantial and compelling” circumstances that demonstrate why the proposed sentence is more “appropriate, reasonable, or equitable than the presumptive sentence.” Minn. Sent. Guidelines II.D. This court recognizes the broad discretion of the trial court in sentencing matters and is “loath to interfere .” State v. Case, 350 N.W.2d 473, 476 (Minn.App.1984). But the abuse of discretion standard is not “a limitless grant of power to the trial court.” State v. Warren, 592 N.W.2d 440, 451 (Minn.1999). This court will modify a departure if it has a “strong feeling” the sentence is inappropriate to the case. State v. Malinski, 353 N.W.2d 207, 209 (Minn.App.1984) (quotation omitted), review denied (Minn. Oct. 16, 1984).

We must ultimately determine whether the trial court’s decision is “unreasonable, inappropriate, excessive, unjustifiably disparate, or not warranted by the findings of fact.” Minn.Stat. § 244.11, subd. 2(b) (1998). In balancing the mitigating and aggravating factors of a given case, a departure must be reversed if it understates the degree of the defendant’s culpability. See, e.g., Warren, 592 N.W.2d at 452 (stating in cases involving multiple victims, the court will consider “whether the sentences are commensurate with the defendant’s culpability and not an understatement of the defendant’s criminality”).

We are also mindful in assessing the circumstances of a case that the quest for rehabilitation alone cannot be used as a basis for a downward departure and only in extraordinary circumstances should it be used as a basis for departure. See United States v. Sklar, 920 F.2d 107, 116 (1st Cir.1990) (stating the mere fact of rehabilitation between the date of arrest and sentencing cannot form the basis for a downward departure).

The trial court exercised its discretion with meticulous care and labored appropriately over the dilemma of this case. The court continually stated how it remained uncertain about its decision, what a strange and unusual case this was, and recognized the stark contrast between granting the state’s request for an upward durational departure and accepting appellant’s request for a downward dispositional departure. Moreover, the court stressed the need for corrective consequences if appellant failed to comply with the stay conditions.

The record would permit a finding that appellant experienced rehabilitation whereby his previous problems — chemical dependency, manipulation, and aggressiveness — were altered considerably through the course of his treatment since the offense. The trial court expressed its belief, not improperly determined, that appellant was not a threat to his wife but, if anything, a threat to himself.

Notwithstanding our deference to the trial court’s decision and the believability of the evidence respecting appellant’s rehabilitation, it is the collegial conclusion of this court that the severity of appellant’s violent act dictates a different result. See State v. Behl, 573 N.W.2d 711, 714 (Minn.App.1998) (stating an appellate court “will overturn the decision of the trial court upon reaching a ‘collegial conclusion’ that a sanction is disproportional to the severity of the crime” (quoting State v. Schantzen, 308 N.W.2d 484, 487 (Minn.1981))), review denied (Minn. Mar. 19, 1998). Ultimately, it is our strongly held judgment that the stay of execution in this case unreasonably depreciates the severity of the offense and thus is not supported by compelling circumstances; it constitutes an abuse of the lawful parameters of trial-court discretion.

The stay of sentence under the circumstances of this case tends to defeat the rule of law, offending the maxim attributed to Oliver Wendell Holmes, Jr., that “the law must keep its promises.” Letter from Oliver Wendell Holmes, Jr. to Harold J. Laski (Dec. 17, 1925) in 1 Holmes-Laski Letters 806 (Mark DeWolfe Howe ed., 1953); see also Louis Michael Seidman, Points of Intersection: Discontinuities at the Junction of Criminal Law and the Regulatory State, 7 J. Contemp. Legal Issues 97, 105 (1996) (citing to Holmes’s maxim for the proposition that “[t]he task of the law is to devise a set of incentives that will determine conduct in a fashion that produces the most good”). While we view rehabilitation as one of the primary purposes of criminal justice, we cannot disregard the equally important goals of deterrence of the individual, of others, and even retribution. Minn. Sent. Guidelines III.A.2 (recognizing the penal objectives of “retribution, rehabilitation, public protection, restitution, deterrence, and public condemnation of criminal conduct”).

DECISION

Because there were children present at the time of the offense, the trial court imposed an upward durational departure from the presumptive sentence of 12 years 9 months to the statutory maximum of 20 years. But the court tied that determination explicitly to its decision to stay execution of the sentence, explaining to appellant that if his purported rehabilitation was not successful he should suffer the statutory maximum. Under these circumstances, we remand for the trial court to impose an executed sentence for a duration to be determined as required by law.

Reversed and remanded for resentenc-ing.

      . We take into account the trial court’s exacting conditions of stay. See State v. Sejnoha, 512 N.W.2d 597, 601 (Minn.App.1994), review denied (Minn. Apr. 21, 1994) (upholding departure in part because of thorough conditions of stay). The conditions included the following: serve one year in the Ramsey County workhouse; pay restitution for medical expenses in the amount of $3,516.75; abstain from drug, alcohol, and chemical use; be subjected to random drug and alcohol testing; attend AA meetings and successfully complete steps one through five of the AA program; get a psychiatric evaluation; attend mental-health counseling; have no contact with his wife; and stay current with child-support payments.

      . Other authorities further confirm that the defendant’s culpability is a necessary consideration in deciding the merits of a guidelines departure. See, e.g., Bangert v. State, 282 N.W.2d 540, 547 (Minn.1979) (stating consecutive life sentences for two separate murders were proper under the circumstances because sentence was "commensurate with culpability and not an exaggeration of defendant's criminality"); Minn. Sent. Guidelines II.D (providing departures (not just durational) from presumptive sentences should be "proportional to the severity of the offense of conviction” and should take into consideration the purpose and principles of the guidelines, such as consistency and proportionality); Id. II.D.2 (suggesting many of the acceptable departure factors relate to defendant’s culpability or severity of the offense).


author: HALBROOKS, Judge.

text:
    Grace SKELLY, Appellant, v. Stanley MOUNT, d/b/a Neptune Bar & Lounge, Respondent.
    No. C3-00-952.
    Court of Appeals of Minnesota.
    Dec. 26, 2000.
    Review Denied Feb. 21, 2001.

      Gerald S. Weinrieh, Rochester, for appellant.
    Peter Lind, Steven D. Pattee, Waldeck & Lind, P.A., Minneapolis, for respondent.
    Considered and decided by SCHUMACHER, Presiding Judge, AMUNDSON, Judge, and HALBROOKS, Judge.
   OPINION

HALBROOKS, Judge.

Appellant Grace Skelly challenges the district court’s conclusion that an individual must have a legal relationship with a decedent to recover for losses under Minn. Stat. § 340A.801, subd. 1 (2000). Finding the district court erred in its interpretation of the statute, we reverse and remand.

FACTS

Robert Skelly and appellant Grace Skelly were married in 1976 but the marriage was dissolved in 1990 because Robert had a drinking problem. The dissolution was amicable and, within a year, Robert agreed to move into appellant’s trailer to share expenses once appellant felt that he had his drinking problem “more under control .” Although the Skellys did not make any formal plans to re-marry, the two went on vacations together, shared confidences, and provided emotional support for each other’s children. In 1992, appellant ended her career as a nurse and began working with Robert as team drivers for a commercial trucking company. Because appellant had no formal truck-driving training, she did not feel comfortable driving without Robert.

On Juné 17, 1997, Robert died in a single-vehicle automobile accident after purchasing alcohol from respondent. His autopsy revealed that at the time of his death, he had a blood alcohol level over .22.

Appellant felt that she could not continue her job as a commercial truck driver without Robert. She tried to resume working as a nurse but quit after four days because of depression. Appellant’s doctor has advised her that because of her depression, she should not work as a nurse or in any field involving stress.

On June 4, 1998, appellant filed suit against respondent. Appellant alleged in her complaint that respondent sold Robert alcohol even though he was exhibiting obvious signs of intoxication. She further alleged that these sales were a direct and proximate cause of Robert’s death and, therefore, illegal under the Civil Damage Act (CDA).

On April 4, 2000, respondent’s motion for summary judgment was heard, arguing that appellant lacked standing to pursue a claim. On April 25, 2000, the district court granted respondent’s motion on the ground that appellant has no standing under the CDA. The district court was unwilling to expand the definition of “other person” to include a live-in companion. This appeal follows.

Appellant argues that the court erred in its interpretation of the CDA, and that there is a genuine issue of fact regarding her damages. Respondent urges this court to affirm, arguing that expanding the pool of potential plaintiffs under the CDA is bad public policy.

ISSUE

Did the court err by concluding appellant may not recover under the Civil Damage Act?

ANALYSIS

On appeal from a district court’s grant of summary judgment, we must determine whether any genuine issues of material fact exist and whether the district court erred in applying the law. Bryson v. Pillsbury Co., 573 N.W.2d 718, 720 (Minn.App.1998). In making this determination, we “view the evidence in the light most favorable to the party against whom judgment was granted.” Id. (quotation omitted). When the issue is solely one of law involving statutory construction, the review is de novo. K.R. v. Sanford, 605 N.W.2d 387, 389 (Minn.2000).

The Minnesota Civil Damage Act, commonly referred to as the Dram Shop Act, provides:

A spouse, child, parent, guardian, employer, or other person injured in person, property, or means of support, or who incurs other pecuniary loss by an intoxicated person or by the intoxication of another person, has a right of action in the person’s own name for all damages sustained against a person who caused the intoxication of that person by illegally selling alcoholic beverages.

Minn.Stat. § 340A.801, subd. 1 (2000). The statute is both remedial and penal because it

punish[es] an offending vendor and deter[s] others from making illegal sales of liquor, [and] it also serves to compensate those who would under ordinary circumstances or other tort principles obtain no recovery for their injuries.

Hannah v. Chmielewski, 323 N.W.2d 781, 784 (Minn.1982) (quotation omitted); see also Koehnen v. Dufuor, 590 N.W.2d 107, 109 (Minn.1999) (noting that before the CDA “no cause of action existed for injury resulting from the sale of intoxicating beverages”).

Respondent argues that since the CDA includes “readily ascertainable classes of individuals,” other “readily ascertainable classes” must be excluded from the term “other person.” But adopting this interpretation would run afoul of the Minnesota Supreme Court’s holding in Lefto v. Hoggsbreath Enterprises, Inc., 581 N.W.2d 855 (Minn.1998). In that case, Desiree Lefto brought a lawsuit on her own and her daughter’s behalf against Hoggsbreath Enterprises because of its illegal sale of alcohol to her fiancé Michael Lefto. Id. at 855-56. This illegal sale was a substantial factor in his automobile accident on the couple’s wedding day. Id. at 856. Hoggs-breath argued that at the time of the accident, Lefto and her daughter lacked standing under CDA because they had no legal relationship to Michael Lefto. Id. But the court explicitly rejected the theory that “only people with a legal relationship with the intoxicated person are entitled to recover,” id., and reiterated its “repeated view ⅜ ⅞ ⅜ that the [Act] was intended solely to protect innocent third persons injured as a result of another’s intoxication,” id. at 857 (quotation omitted) (second alteration in original).

Under this broad reading of the CDA, we find that appellant has standing to pursue her claim. We find no difference between appellant’s situation and that of Nicole and Desiree Lefto. Similarly to the Leftos, appellant lived with Robert Skelly for many years and depended on him both financially and emotionally. The mere fact that Michael Lefto’s accident occurred on the way to his wedding is of little legal consequence. Unlike the district court here, the Lefto court did not find it relevant whether a relationship was coming together or drifting apart. Rather, what is important is that appellant has demonstrated that she is an innocent third person who lost her means of support due to respondent’s alleged illegal sale of alcohol to Robert Skelly.

We acknowledge some hesitation in arriving at this decision. This interpretation creates a broader class of potential plaintiffs and gives standing to individuals who have no legal relationship to the intoxicated person. For example, as respondent correctly notes, if Robert Skelly had been killed by a drunk driver, appellant would not have standing against the driver under the Wrongful Death Act, Minn.Stat. § 573.02 (2000). But that statute expressly limits the class of potential plaintiffs to “the surviving spouse or one of the next of kin.” Minn.Stat. § 573.02, subd. 3 (2000). There is no such limiting language in the CD A, and we are bound by the language of the statute and its interpretation under Lefto.

DECISION

The plain language of the Civil Damage Act permits recovery for all damages sustained by any person injured as a result of another person’s intoxication. Therefore, the district court erred by concluding that appellant must have a legal relationship with Robert Skelly to recover under the Act.

Reversed and remanded.


author: YANDE WALLE, Chief Justice.

text:
    2000 ND 217
    Roger REDFIELD, Special Administrator of the Estate of Esther Reinhardt, Plaintiff, v. Gail BITTERMAN, Colleen Schneider, and Neal G. Reinhardt, Defendants and Appellees, North Dakota Department of Human Services, Appellant. In the Matter of the Estate of Esther Reinhardt. North Dakota Department of Human Services, Claimant and Appellant, and Roger Redfield, Special Administrator of the Estate of Esther Reinhardt, Appellant, v. Gail Bitterman, Colleen Schneider, and Neal G. Reinhardt, Respondents and Appellees. Roger Reified, Special Administrator of the Estate of Esther Reinhardt, Plaintiff and Appellee, v. Gail Bitterman, Colleen Schneider, and Neal G. Reinhardt, Defendants and Appellants, North Dakota Department of Human Services, Appellee.
    Nos. 20000107, 20000162, 20000181.
    Supreme Court of North Dakota.
    Dec. 21, 2000.

      Ann C. Mahoney, Mahoney & Mahoney, Center, ND, for plaintiff, appellant, and appellee Roger Redfield. Submitted on briefs.
    John A. Richardson, Richardson, Lange & Donovan, Hazen, ND, for defendants, appellees, respondents, and appellants Gail Bitterman, Colleen Schneider, and Neal G. Reinhardt.
    Blaine L. Nordwall, Special Assistant Attorney General, Bismarck, ND, for appellant, claimant, and appellee North Dakota Department of Human Services.
   YANDE WALLE, Chief Justice.

[¶ 1] The North Dakota Department of Human Services (“Department”) appealed district court orders disallowing its claim for recovery of medical assistance benefits and dismissing the complaint of Roger Redfield, Special Administrator of the Estate of Esther Reinhardt (“Redfield”) against Gail Bitterman, Colleen Schneider, and Neal G. Reinhardt. Redfield appealed the order dismissing his complaint. Gail Bitterman, Colleen Schneider, and Neal G. Reinhardt appealed an order granting additional time within which to appeal the order dismissing Redfield’s complaint. We conclude the district court did not abuse its discretion in granting additional time within which to appeal. We affirm the orders from which the appeals were taken, and we remand for further proceedings.

[¶ 2] Edwin and Esther Reinhardt married in 1949. Edwin entered a nursing facility in 1992. In 1992, and again in 1993, Esther purchased a $25,000 certificate of deposit in her name, but payable on death to her three children, Gail Bitterman, Colleen Schneider, and Neal Reinhardt. Edwin qualified for medical assistance benefits on May 1, 1995, and received benefits until July 31, 1997, in the amount of $101,047.99. Esther died on July 12, 1997, and Edwin became ineligible for medical assistance benefits, because of the assets in Esther’s estate. Esther’s children cashed the certificates of deposit, worth $59,680.39 at her death, before Edwin died on November 19, 1997.

[¶ 3] On August 8, 1997, Neal Reinhardt applied for appointment as the personal representative in the matter of Estate of Esther Reinhardt, and was granted letters testamentary. On August 21, 1997, the first notice to creditors was published. On October 31, 1997, Neal Reinhardt served the Department with a copy of his application for appointment of personal representative. On July 1, 1998, the Department filed a claim for medical assistance benefits issued to Edwin Reinhardt in the amount of $101,047.99 against the estate of Esther Reinhardt. On July 17, 1998, Neal Reinhardt notified the Department its claim had been disallowed, stating “such claim was not filed in a timely fashion, and in addition, the claimant is not a creditor of the decedent, and it does not have a legal claim against the decedent’s estate.” The Department petitioned the district court for allowance of its claim on July 21,1998.

[¶ 4] Roger Redfield, Director of the Mercer County Social Service Board, petitioned the district court for appointment as special administrator of the estates of Esther Reinhardt and Edwin Reinhardt. Redfield was appointed Special Administrator of the estates. By summons and complaint of July 7, 1998, Redfield sued Gail Bitterman, Colleen Schneider, and Neal Reinhardt (Redfield v. Bitterman) to collect the certificates of deposit, alleging, among other things, “Edwin Reinhardt, deceased, is entitled to certain property and assets of the Estate of Esther Reinhardt by virtue of being the surviving spouse of Esther Reinhardt.” Redfield sought a judgment “[f]or transfer and payment to the Estate of Esther Reinhardt of all assets with a right of survivorship or P.O.D. to which decedent Esther Reinhardt was beneficially entitled under Section 30.1-31-08.”

[¶ 5] On January 24, 2000, the district court issued an order denying Redfield’s motion for summary judgment. In applying N.D.C.C. § 30.1-31-08(2) and 30.1-31-09, the court concluded: (1) The Department “offered no evidence to contradict Neal’s affidavits which clearly show Edwin had no beneficial interest in the certificates of deposit”; and (2) “Edwin was never a ‘party’ to the two ‘accounts.’ ... Edwin was not named on the certificates of deposit. By the terms of the ‘accounts,’ Edwin had no interest in them, beneficial or otherwise.” In applying 42 U.S.C. § 1396p(b) (1994) and N.D.C.C. § 50-24.1-07, the court concluded:

[I]n order for [the Department] to assert a claim against the estate of a spouse of a medical-assistance-benefits-recipient, the spouse must survive the recipient. She must be a “survivor, heir, or assign of the deceased individual through joint tenancy, tenancy in common, survivorship, life estate, living trust, or other arrangement.” 42 U.S.C. § 1396p(b)(4)(B) (1994).

On February 1, 2000, the district court issued an order dismissing Redfield’s case on the merits. Notice of entry of the order of dismissal was served on Redfield on February 3, 2000. By letter of February 4, 2000, counsel for Redfield mailed to the Department a copy of the court’s February 1, 2000, order of dismissal in Red-field v. Bitterman and a copy of the court’s order disallowing the Department’s claim against the Estate of Esther Reinhardt on February 1, 2000. The Department mailed a notice of appeal on April 6, 2000, which was filed by the district court clerk on April 7, 2000. The district court issued an order granting the Department’s motion for an extension of the time within which to appeal. The defendants in Red-field v. Bitterman appealed the district court’s order granting the extension.

[¶ 6] On February 1, 2000, the district court issued an order disallowing the Department’s claim in Estate of Esther Reinhardt, “for the reasons set forth” in the court’s January 24, 2000, order in Redfield v. Bitterman. The Department and Red-field appealed, and the two cases were consolidated on appeal. We first consider the order granting the Department’s motion for an extension of time within which to appeal.

I

[¶7] Under N.D.R.App.P. 4(a), a notice of appeal must be filed within 60 days of service of notice of entry of the judgment or order from which an appeal may be taken. “The time for filing an appeal is jurisdictional.” LaRocque v. LaRocque, 1998 ND 143, ¶ 4, 582 N.W.2d 645. The time for appeal does not begin to run until notice of entry is served. Gierke v. Gierke, 1998 ND 100, ¶ 6, 578 N.W.2d 522. However, actual knowledge of entry of a judgment or order, clearly evidenced in the record, commences the running of the time for appeal. Gierke, at ¶ 7. “A party having knowledge of the entry of judgment cannot indefinitely delay the period for filing an appeal based upon failure to serve a notice of entry of judgment.” Domres v. Domres, 1998 ND 217, ¶ 7, 587 N.W.2d 146. Under N.D.R.App.P. 4(a), ⅛¾ trial court may extend the time for filing a notice of appeal for up to 30 days upon a showing of excusable neglect. “We will not set aside a trial court’s order on a motion for an extension of time based on excusable neglect absent an abuse of discretion.” Schaan v. Magic City Beverage Co., 2000 ND 71, ¶ 22, 609 N.W.2d 82. “A trial court abuses its discretion when it acts arbitrarily, unconscionably or unreasonably.” Id. We have held a party must show unique or extraordinary circumstances caused the delay in filing a notice of appeal to establish excusable neglect. Id. at ¶ 24.

[¶ 8] The Department supported its motion for an extension of time to file its notice of appeal with an affidavit by a Department lawyer relating (1) confusion about who should sign the notice of appeal; (2) the absence of Redfield’s attorney, who was on vacation from April 3 until April 12; (3) the staff person who normally secures a check for payment of a filing fee “was out of the office due to an illness in her family”; (4) an inexperienced staff member handled the request for a filing fee check; (5) the Department attorney “who oversees this staff person, was also out of the office due to a family illness”; (6) the Department’s “other attorney in the Legal Advisory Unit who handles general duties had just resigned her position effective March 31, 2000”; and (7) “I was out of the office the day that the notice of appeal was mailed on April 6, 2000. In my absence and because of my failure to advise her otherwise, the staff person assigned to sending out the notice believed that mailing it on that date was equivalent to filing.” The trial court could reasonably have considered those matters extraordinary circumstances, and we conclude the trial court did not abuse its discretion in granting the Department’s motion for an extension of time to appeal.

II

[¶ 9] In ruling the Department “has no valid claim against the Esther Reinhardt Estate,” the district court held “that in order for [the Department] to assert a claim against the estate of a spouse of a medical-assistance-benefits-recipient, the spouse must survive the recipient.” The Department contends the district court erred.

[¶ 10] Recovery of medical assistance benefits is authorized by 42 U.S.C. § 1396p(b), which provides, in part:

(1) No adjustment or recovery of any medical assistance correctly paid on behalf of an individual under the State plan may be made, except that the State shall seek adjustment or recovery of any medical assistance correctly paid on behalf of an individual under the State plan in the case of the following individuals:
(B) In the case of an individual who was 55 years of age or older when the individual received such medical assistance, the State shall seek adjustment or recovery from the individual’s estate, but only for medical assistance constituting of—
(i) nursing facility services, home and community-based services, and related hospital and prescription drug services, or
(ii) at the option of the State, any items or services under the State plan.
(2) Any adjustment or recovery under paragraph (1) may be made only after the death of the individual’s surviving spouse, if any, and only at a time—
(4) For purposes of this subsection, the term “estate”, with respect to a deceased individual—
(A) shall include all real and personal property and other assets included within the individual’s estate, as defined for purposes of State probate law; and
(B) may include, at the option of the State (and shall include, in the case of an individual to whom paragraph (l)(C)(i) applies), any other real and personal property and other assets in which the individual had any legal title or interest at the time of death (to the extent of such interest), including such assets conveyed to a survivor, heir, or assign of the deceased individual through joint tenancy, tenancy in common, survivorship, life estate, living trust, or other arrangement.

[¶ 11] This Court has construed the definition of a recipient’s estate in 42 U.S.C. § 1396p(b)(4):

That expansive definition is broad enough to encompass the department’s claim against the estate of a deceased spouse of a deceased recipient of medical assistance benefits for the amount of medical assistance paid out, to the extent the recipient at the time of death had any title or interest in assets which were conveyed to his or her spouse “through joint tenancy, tenancy in common, survivorship, life estate, living trust, or other arrangement.”

In re Estate of Thompson, 1998 ND 226, ¶ 11, 586 N.W.2d 847. The authority to recover benefits from the estate of a recipient’s surviving spouse is limited:

This Act gives the States, at their option, the power to recover against a spouse’s estate, but only against the recipient’s assets that were conveyed through joint tenancy and other specified forms of survivorship.

In re Estate of Craig, 82 N.Y.2d 388, 604 N.Y.S.2d 908, 911, 624 N.E.2d 1003 (Ct.App.1993). In In re Estate of Wirtz, 2000 ND 59, ¶ 14, 607 N.W.2d 882, we held any assets conveyed by a medical assistance recipient to his spouse before the recipient’s death and traceable to his surviving spouse’s estate after her death were subject to recovery by the Department. We noted “recoverable assets do not include all property ever held by either party during the marriage.” ,Id. We said: “Thus, recovery from a surviving spouse’s separately-owned assets because of a past obligation to pay a now deceased Medicaid recipient’s medical expenses as necessaries, or recovery from the surviving spouse’s entire estate, including assets not traceable from the recipient, is not allowed.” Id.

[¶ 12] Section 50-24.1-07, N.D.C.C., allows the Department to recover medical assistance benefits from a recipient’s estate:

1. On the death of any recipient of medical assistance who was fifty-five years of age or older when the recipient received the assistance, and on the death of the spouse of the deceased recipient, the total amount of medical assistance paid on behalf of the recipient following the recipient’s fifty-fifth birthday must be allowed as a preferred claim against the decedent’s estate....
2. No claim must be paid during the lifetime of the decedent’s surviving spouse, if any, nor while there is a surviving child who is under the age of twenty-one years or is blind or permanently and totally disabled, but no timely filed claim may be disallowed because of the provisions of this section.

We have said:

Because the expansive federal definition of “estate” in 42 U.S.C. § 1396p(b)(4) extends only to assets in which the medical assistance benefits recipient “had any legal title or interest in at the time of death,” it is a matter of little moment whether the department seeks to recover the benefits paid by filing a claim in the estate of the recipient after the death of the recipient’s surviving spouse or by filing a claim in the surviving spouse’s estate.

In re Estate of Thompson, 1998 ND 226, ¶ 15 n. 3, 586 N.W.2d 847. Beyond that, however, N.D.C.C. § 50-24.1-07 does not authorize recovery from the estate of a recipient’s surviving spouse. Nor does N.D.C.C. § 50-24.1-07 authorize recovery from the estate of a recipient’s spouse who predeceases the recipient, beyond assets to which the recipient had a legal title or interest. The statutory language, “on the death of the spouse of the deceased recipient,” and “[n]o claim must be paid during the lifetime of the decedent’s surviving spouse, if any,” evidences a legislative intent to limit the recovery after the death of a recipient’s spouse to cases in which a recipient is survived by a spouse. If the spouse predeceases the recipient, permitting a claim to be filed after the death of the recipient would require the spouse’s estate to remain open, and could forestall the closing of the spouse’s estate for a lengthy period. In addition, there is an important difference when the spouse predeceases the recipient. If the recipient dies first, the claim finalizes and the amount to be recovered upon the death of the recipient’s spouse is certain. If the spouse dies first, the claim is not finalized and the amount is not yet certain, because the recipient may still be receiving benefits. Thus, we agree with the district court’s conclusion that the Department’s claim against the estate of a recipient’s spouse to recover the certificates of deposit requires that “the spouse must survive the recipient.” Furthermore, assuming funds in the certificates of deposit may have been traceable to Edwin, the Department has not demonstrated the district court erred in concluding “Edwin had no interest in them, beneficial or otherwise.”

Ill

[¶ 13] The Department asserts Edwin had statutory claims against Esther’s estate when Esther died. The Department conceded in its brief: “Edwin’s right to an elective share, worth at least $50,000 under N.D.C.C. 30.1-05-01, was personal to him and ended when he died without first petitioning for that elective share.” But, the Department asserts Edwin was entitled to $10,000 in exempt property under N.D.C.C. § 30.1-07-01 as Esther’s surviving spouse, and was entitled to a family allowance under N.D.C.C. § 30.1-07-02. Section 30.1-07-01, provides, in part:

In addition to the homestead defined in section 47-18-01, the decedent’s surviving spouse is entitled from the estate to a value, not exceeding ten thousand dollars in excess of any security interests therein, in household furniture, automobiles, furnishings, appliances, and personal effects.

Section 30.1-07-02(1), provides, in part:

In addition to the right to homestead allowance and exempt property, the decedent’s surviving spouse and minor children whom the decedent was obligated to support' and children who were in fact being supported by the decedent are entitled to a reasonable allowance in money out of the estate for their maintenance during the period of administration ....

Redfield asserted in district court that Edwin had a right to exempt property and a family allowance. The district court did not address Edwin’s rights under N.D.C.C. §§ 30.1-07-01 and 30.1-07-02 in its orders. If we are unable to determine if the district court considered and resolved a critical issue, a remand is necessary to resolve the issue. Berg v. Berg, 2000 ND 37, ¶ 8, 606 N.W.2d 903.

IV

[¶ 14] The orders are affirmed to the extent they granted additional time within which to appeal and denied recovery. The matter is remanded for further proceedings in accordance with this opinion. We do not retain jurisdiction under N.D.R.App.P. 35(b).

[¶ 15] SANDSTROM, NEUMANN, MARING, KAPSNER, JJ., concur.

      . Section 30.1-19-01 (U.P.C. § 3-801), N.D.C.C., provides, in part: "If the personal representative elects to publish a notice to creditors then, in addition to publishing the notice to creditors, the personal representative shall mail a copy of the notice to those creditors whose identities are known to the ■ personal representative or are reasonably ascertainable and who have not already filed a claim.” Reinhardt did not mail a copy to the Department.

      . Sections 50-06.3-07 and 50-24.1-07, N.D.C.C., require every personal representative to forward to the Department "a copy of the petition or application commencing probate, heirship proceedings, or joint tenancy tax clearance proceedings in the respective district court, together with a list of the names of the legatees, devisees, surviving joint tenants, and heirs at law of the estate.” However, such a petition and list "is not a notice to creditors complying with N.D.C.C. § 30.1-19-01.” In re Estate of Kiesow, 2000 ND 155, ¶ 7, 615 N.W.2d 538.


author: NEUMANN, Justice.

text:
    2000 ND 224
    Robert L. BERGER, Claimant and Appellant, v. NORTH DAKOTA WORKERS COMPENSATION BUREAU, Appellee, and Silver Dollar Bar, Respondent.
    No. 20000153.
    Supreme Court of North Dakota.
    Dec. 27, 2000.

      Stephen D. Little, Dietz, Little & Haas, Bismarck, ND, for claimant and appellant.
    Lawrence A. Dopson, Special Assistant Attorney General, Bismarck, ND, for ap-pellee.
   NEUMANN, Justice.

[¶ 1] Robert L. Berger (“Berger”) appealed from a district court order and judgment affirming an order of the North Dakota Workers Compensation Bureau (“the Bureau”) determining he was not an employee covered by the Workers Compensation Act when he was injured. We affirm.

[¶ 2] Berger suffered a head injury while working as a bartender at the Silver Dollar Bar in Mandan December 6, 1992. Berger’s wife, Dayta, filed a claim for workers compensation benefits on his behalf. The Bureau accepted the claim and awarded benefits on March 11,1993.

[¶ 3] On August 2, 1993, the Bureau issued an order in which it found Berger’s injury was caused by voluntary use of intoxicants, concluded the injury was not employment-related, and ordered dismissal of the claim. On November 30, 1993, the Bureau issued an order in which it found Berger was injured when he was assaulted while employed at the Silver Dollar Bar on December 6, 1992, found the evidence did not establish his injury was caused by voluntary consumption of alcohol, concluded he “suffered an injury by accident arising out of and in the course of his employment,” revoked its dismissal order of August 2, 1993, and ordered payment of medical expenses and disability benefits.

[¶ 4] On May 15, 1998, the Bureau mailed Berger a notice of intention to discontinue or reduce benefits because it had determined he was a partner in the business for which he was working when he was injured, and did not have appropriate workers compensation coverage. The Bureau terminated Berger’s benefits on June 5, 1998. On November 17, 1998, the Bureau notified Berger it found he was not a partner or an employee, but was a consultant. The Bureau also notified Berger it was reinstating benefits from June 6,1998, and it was terminating benefits on December 8,1998.

[¶ 5] On December 28, 1998, the Bureau issued an order revoking acceptance of Berger’s claim, dismissing the claim, ordering repayment of benefits, and ordering forfeiture of benefits. The Bureau found Berger made a false statement when he applied for benefits as an employee, he was not an employee when he was injured, he was a paid consultant when he was injured, and neither Berger nor the Silver Dollar Bar had procured appropriate workers compensation coverage for him. The Bureau revoked the November 80, 1993, order awarding benefits, dismissed the claim, ordered Berger to repay $158,714.87 for medical expenses, disability benefits, and permanent partial impairment benefits, and ordered forfeiture of any additional benefits in connection with the claim.

[¶ 6] Asserting he was an employee of the Silver Dollar Bar and entitled to workers compensation benefits for his injury, Berger requested reconsideration and demanded a formal hearing. After conducting a formal hearing on August 18, 1999, a Temporary Administrative Law Judge (“TALJ”) issued recommended findings:

4. The greater weight of the evidence shows that the claimant was not an employee of the Silver Dollar Bar on December 6, 1992, or any other relevant time. He worked in the bar as a bartender, but his status was that of an owner or partner.
5. The claimant never obtained optional coverage as an owner under the North Dakota Workers Compensation Act.
6. The greater weight of the evidence does not show that the claimant deliberately filed a false claim or made a false statement in connection with this claim.

The TALJ concluded Berger “was not a person covered by the Workers Compensation Act at the time of his injury” and recommended Berger be ordered to repay $158,714.87 to the Bureau. On October 11, 1999, the Bureau issued an order adopting the TALJ’s recommended order as its final order. Berger appealed to the district court, which affirmed the Bureau’s order on March 8, 2000. Judgment was entered on March 21, 2000, and Berger appealed.

I

[¶ 7] We exercise a limited review in appeals involving Bureau decisions:

On appeal, we review the Bureau’s decision under N.D.C.C. §§ 28-32-19 and 28-32-21. We affirm the Bureau’s decision unless its findings of fact are not supported by a preponderance of the evidence, its conclusions of law are not supported by its findings of fact, its decision is not supported by its conclusions of law, its decision is not in accordance with the law, or its decision violates the claimant’s constitutional rights or deprives the claimant of a fair hearing. E.g., Vernon v. North Dakota Workers Comp. Bureau, 1999 ND 153, ¶ 8, 598 N.W.2d 139. Our review of the Bureau’s findings of fact is limited to deciding whether a reasoning mind reasonably could have determined the findings were proven by the weight of the evidence from the entire record. Id. Questions of law, including the interpretation of a statute, are fully reviewable on appeal from a decision by the Bureau. Lee v. North Dakota Workers Comp. Bureau, 1998 ND 218, ¶ 5, 587 N.W.2d 423.

Robertson v. North Dakota Workers Comp. Bureau, 2000 ND 167, ¶ 8, 616 N.W.2d 844.

II

[¶ 8] Relying on Flink v. North Dakota Workers Comp. Bureau, 1998 ND 11, 574 N.W.2d 784; McCarty v. North Dakota Workers Comp. Bureau, 1998 ND 9, 574 N.W.2d 556; and Cridland v. North Dakota Workers Comp. Bureau, 1997 ND 223, 571 N.W.2d 351, Berger made two related contentions:

I. The Bureau cannot base its termination of Bob Berger’s benefits' on an issue raised, for the first time, in the recommended decision of the TALJ.
II. Having failed to satisfy the elements of N.D.C.C., Section 65-05-33, the Bureau cannot now rely on other legal authority to support forfeiture of benefits.

[¶ 9] The TALJ recommended finding Berger was not an employee, but an owner or partner, when he was injured. Asserting the Bureau first agreed “Berger had been an employee of the Silver Dollar Bar at the time of his injury,” and later determined he was not a partner or an employee, but a consultant, Berger contends he “was ‘blindsided’ and not afforded a fair opportunity to prepare his case .” Berger further contends:

Having found that the Bureau failed to prove the elements of the offense asserted, TALJ Dyer should have remanded the matter for reinstatement of benefits; instead, he mistakenly concluded that Bob was a partner/owner of the Silver Dollar Bar at the time of his injury and, even though Bob’s assertion of employment had not been willful, the Bureau was nevertheless entitled to recoup $158,714.87 in benefits and, Bob must forfeit all future benefits. Again, TALJ Dyer based his decision on an issue (innocent mistake) not previously raised. ... The Bureau claimed only N.D.C.C., Section 65-05-33 as authority for terminating benefits. The Bureau cannot now rely on an issue never raised and authority never claimed.

The crux of Berger’s arguments is the assertion that the TALJ based his recommendation on his finding Berger was not an employee, but an owner or partner, which Berger asserts was raised for the first time by the TALJ. That clearly was the basis of the TALJ’s recommended decision, not an issue about an innocent mistake.

[¶ 10] In its order of December 28, 1998, the Bureau found “the evidence does not indicate claimant was an employee of the Silver Dollar Bar on December 6,1992, when he was injured,” and “the evidence indicates claimant was being paid as a consultant by the Silver Dollar Bar on December 6, 1992.” Berger requested reconsideration, specifically asserting both those findings were incorrect. On May 17, 1999, the TALJ specified the following issue for consideration at the hearing: “Whether claimant made willful and material false statements regarding his work activities and receipt of income.” By letter of June 4, 1999, Bureau’s counsel suggested the following issues to Berger’s counsel:

1. Whether the claimant was an employee of Silver Dollar Bar for Worker’s Compensation purposes at the time of his injury of December 6, 1992;
2. Whether the claimant willfully filed a false claim or made a false statement pursuant to N.D.C.C. § 65-05-33 in applying for benefits as an employee of the Silver Dollar Bar.

In a letter of June 16,1999, Berger’s attorney replied he agreed with the second issue posited by Bureau counsel, and suggested the other issue be stated as follows:

1. Whether claimant was an employee of Silver Dollar Bar under N.D.C.C., Section 65-01-03 (1991) and N.D.A.C., Section 92-01-02-49 (1994).

Berger’s attorney also suggested a third issue: “Whether the Bureau has deprived the claimant of due process.” On July 7, 1999, the TALJ issued an amended specification of issues, specifying the following issues for consideration at the hearing:

1. Whether the claimant was an employee of the Silver Dollar Bar within the meaning of the Workers Compensation Act on December 6, 1992;
2. Whether the claimant willfully filed a false claim or made a false statement[s] in connection with his application for workers compensation benefits stemming from an injury occurring on December 6, 1992;
3. Whether the claimant was deprived of due process of law by the Bureau in connection with this claim.

[¶ 11] It is clear the issue of whether or not Berger was an employee when he was injured arose long before the hearing before the TALJ. That issue has been involved throughout the course of the proceedings, from Berger’s application for benefits to this appeal. It cannot reasonably be suggested the matter was raised for the first time in the TALJ’s recommendation or that Berger “was 'blindsided’ and not afforded a fair opportunity to prepare his case.” We conclude the issue of Berger’s employment status was properly raised, Berger was appropriately notified of tlje issue, and Berger had a fair opportunity to present his case.

. [¶ 12] Berger contends the Bureau cannot rely on any authority other than N.D.C.C. § 65-05-33 to forfeit benefits. An owner is not entitled to workers compensation benefits without securing optional coverage under N.D.C.C. § 65-07-01. Dunn v. North Dakota Workmen’s Comp. Bureau, 191 N.W.2d 181, 184 (N.D.1971). Berger did not secure such coverage. Under N.D.C.C. § 65-01-11, “Any claimant against the fund, however, has the burden of proving by a preponderance of the evidence that the claimant is entitled to benefits.” If Berger was not an employee and did not secure optional employer coverage under N.D.C.C. § 65-07-01, he was not entitled to benefits, whether or not he made false statements prohibited by N.D.C.C. § 65-05-33.

Ill

[¶ 13] Berger contends a preponderance of the evidence shows he was an employee of the Silver Dollar Bar when he was injured on December 6, 1992. Berger contends his status as an employee can only be determined by applying N.D. Admin. Code § 92-01-02-49:

The Bureau has adopted N.D.A.C., Section 92-01-02-49, which provides a 20-part test for determining whether an individual is an employee or an independent contractor. All of the witnesses familiar with Bob’s duties at the Silver Dollar Bar testified that, under the Bureau’s test, Bob was an employee....
... Whether Bob is called a bartender or a consultant, his status as either an employee or an independent contractor can only be ascertained under the Bureau’s properly promulgated administrative rule. The Bureau’s failure to apply its own rule in determining .Bob Berger’s employment status necessarily means that it has not met its burden of rebutting the statutory presumption of employment.

[¶ 14] Under N.D.C.C. § 65-01-03, a person who performs services for another for remuneration is presumed to be an employee, unless he or she is an independent contractor under the “common law” test. In N.D. Admin. Code § 92-01-02-49, the Bureau has identified twenty factors that “are to be considered” when “determining whether a person is an independent contractor or an employee under the ‘common law’ test.” In this case, however, the Bureau was not trying to determine whether Berger was “an independent contractor or an employee.” The Bureau was trying to determine whether Berger was an employee of the Silver Dollar Bar or an owner. Thus, N.D. Admin. Code § 92-01-02-49 was inapplicable and did not preclude the Bureau from considering other evidence or factors.

[¶ 15] The TALJ based his recommendation on a number of evidentiary matters: (1) Lucas Berger’s will left the Silver Dollar Bar to his three sons, Robert, Dale, and Lucas, Jr., in equal shares; (2) In 1986 Robert renounced his right to his share; (8) Payroll reports filed with the Bureau for 1990 and 1991 do not list Robert anywhere, but show Dale Berger and Lucas Berger, Jr., as owners declining optional coverage; (4) A payroll report for 1992, filed after Robert’s injury, “adds him as a manager to his two brothers and indicates he desires optional coverage. The claimant is also listed as an employee at $26,000 per year”; (5) Dayta Berger, Robert’s wife, the bookkeeper for the Silver Dollar Bar, “conceded that the change in the Report to the Bureau for the year 1992 listing the claimant for the first time, completed in 1993, was done in order to get him coverage for his injury”; (6) Robert and Dayta Berger’s income tax return for 1991 does not show any wages or salaries, but shows Robert had business income of $29,051; (7) Robert and Dayta Berger’s 1990 income tax return showed Robert had self-employment income of $20,647; (8) Dayta Berger said in a letter: “Prior to Robertas head injury, his partner, Luke Berger, and himself each received 50% of the profits”; (9) As part of a Job Service audit of the Silver Dollar Bar in 1994, Dale Schiff, an accountant, wrote Job Service that Robert was a partner and the 1991 and 1992 partnership tax returns were going to be amended to reflect Robert’s one-third partnership interest; (10) Dayta and Robert’s “1992 income tax return likewise shows no wages or salaries but shows $17,672 for the claimant as manager working under his own name”; (11) “The 1993 Partnership' return shows payments of $15,600 to the claimant and $34,104 to Lucas Berger, Jr. as partners”; and (12) A partnership certificate of October 15, 1993, “shows the claimant and Lucas Berger, Jr. as each having a fifty percent share of the Silver Dollar Bar.”

[¶ 16] From our review of the record, we conclude a reasoning mind could reasonably find, as the Bureau did, that Robert Berger “was not an employee of the Silver Dollar Bar on December 6, 1992, ... but his status was that of an owner or partner.”

[¶ 17] The district court order and judgment affirming the Bureau’s order are affirmed.

[¶ 18] VANDE WALLE, C.J., MARING, SANDSTROM, JJ., LAWRENCE A. LECLERC, D.J., concur.

[¶ 19] The Honorable LAWRENCE A. LECLERC, D.J., sitting in place of KAPSNER, J., disqualified.