author: PORITSKY, Judge.

text:
    STATE of Minnesota, Respondent, v. Grant Gregory JOHNSON, Appellant.
    No. C9-02-2144.
    Court of Appeals of Minnesota.
    Dec. 16, 2003.

      Peter J. Timmons, Bloomington, MN, for appellant.
    Mike Hatch, Attorney General, St. Paul, MN and Lisa C. Netzer, Associate City Attorney, Bloomington, MN, for respondent.
    Considered and decided by RANDALL, Presiding Judge; MINGE, Judge; and PORITSKY, Judge.
   OPINION

PORITSKY, Judge.

Appellant Grant Gregory Johnson was convicted of the misdemeanor offenses of (1) third-degree driving while impaired— under the influence of alcohol (DWI) and (2) refusal to submit to a chemical test. On appeal, he argues (a) that the prosecutor committed misconduct and (b) that the district court erred in (i) denying appellant’s motion for mistrial, (ii) precluding testimony from a medical expert, and (iii) instructing the jury about the defense of reasonable refusal. We affirm.

FACTS

Appellant was involved in a fight at his friend’s apartment complex. Bloomington police officers were called to the scene. One officer talked with appellant and noticed three indicia of intoxication: appellant’s breath smelled strongly of alcohol, his eyes were bloodshot and glassy, and his speech was slurred. Appellant was warned not to drive. Despite a cut above his left eye and dried blood by his lip, apparently as a result of the fight, appellant refused offers of medical assistance.

Approximately two hours later, the same officer responded to a report of a pickup truck smashing into a tree at the apartment complex, and he recognized appellant, who had been driving the pickup. The officer again noticed the same three indicia of intoxication, and also noticed a fourth: appellant had difficulty standing in one spot without swaying. Appellant failed three standard field sobriety tests. During the testing, he did not mention any medical problems. Although appellant’s left eye was swollen, he again refused offers of medical assistance.

The officer then administered a preliminary breath test to appellant; the test reading was 0.101. Appellant was arrested and brought to the Bloomington police department, where he was read the Minnesota Implied Consent Advisory. After appellant made two phone calls, he told the officer that his attorney advised him to take the test. But when asked to take the test, appellant refused, stating that he did not believe he needed to give a reason for refusing. Appellant was charged with third-degree DWI and refusal to test.

At trial, appellant admitted that he had consumed approximately six beers prior to the fight, but had not felt intoxicated. Appellant could not remember getting into his pickup truck or driving it into the tree, but agreed that it had happened. He also testified that, roughly four years earlier, he had been diagnosed with Addison’s disease, that he takes prescription medications every day and can suffer an adrenal crisis without it, and that, during a crisis, he will “go through stages of disorientation.” Appellant’s mother testified that, during a crisis, appellant’s behaviors resemble those of someone intoxicated. Appellant admitted that he did not mention his medical condition to the officers. He also stated that he did not know why he refused to take the breath test, but that he had made a clear decision not to. When asked what he attributed his confusion to, he said it was due both to the fight he had been in earlier and to his “disease which makes [him] very disoriented.”

At trial, appellant tried to introduce testimony on Addison’s disease from an emergency room doctor who had not examined appellant and was not qualified as an Addison’s disease expert. The district court precluded the doctor from testifying.

During closing argument, the prosecutor said that no medical experts had given any opinions about whether appellant had suffered an adrenal crisis or was intoxicated. Defense counsel argued that both appellant’s performance on the field sobriety tests and his decision not to take the test were attributable to confusion and other symptoms of an adrenal crisis, which were due to his Addison’s disease. After the jury returned its guilty verdicts, appellant moved for a mistrial and argued that the prosecutor’s remarks constituted misconduct. The district court denied the motion, stating that the prosecutor’s comments referred to appellant’s affirmative defense of reasonable refusal and noting that defense counsel had not objected during the argument.

This appeal follows.

ISSUES

1. Did the prosecutor commit prejudicial misconduct during closing argument, requiring a mistrial?

2. Did the district court abuse its discretion by precluding the emergency room doctor from testifying about Addison’s disease?

3. Did the district court abuse its discretion in its instructions to the jury regarding reasonable refusal?

ANALYSIS

1. Prosecutor Misconduct

Appellant argues (1) that the prosecutor committed misconduct in her closing argument when she referred to the absence of expert medical testimony and (2) that the district court erred in denying appellant’s motion for a mistrial based on the alleged prosecutorial misconduct. The determination of whether a prosecutor engaged in misconduct is largely within the discretion of the district court. State v. Ture, 353 N.W.2d 502, 516 (Minn.1984). This court reviews a trial court’s denial of a motion seeking a mistrial for an abuse of discretion. State v. Jorgensen, 660 N.W.2d 127, 133 (Minn.2003).

As a threshold matter, appellant failed to object to the prosecutor’s comments and did not move for a mistrial until after the jury returned its verdict. A defendant who fails to object to a prosecutor’s closing argument or to seek a cautionary instruction ordinarily waives the right to have the issue considered on appeal. State v. Parker, 353 N.W.2d 122, 127 (Minn.1984). Absent a timely objection or request for a curative instruction, we review for plain error, for conduct so clearly erroneous and so prejudicial that the defendant’s right to a remedy should not be forfeited. State v. Hunt, 615 N.W.2d 294, 302 (Minn.2000).

Appellate courts reviewing claims of prosecutorial misconduct generally will reverse only if the misconduct, when considered in light of the whole trial, impaired the appellant’s right to a fair trial. State v. Powers, 654 N.W.2d 667, 678 (Minn.2003). If the claim of misconduct arises out of the closing argument, this court considers the closing argument as a whole; it does not focus on particular “phrases or remarks that may be taken out of context or given undue prominence.” State v. Johnson, 616 N.W.2d 720, 728 (Minn.2000) (quotation omitted).

In her closing argument, the prosecutor referred to appellant’s failure to call a medical expert to testify about Addison’s disease. In general, it is improper for a prosecutor to comment on a defendant’s failure to call a witness or contradict testimony. State v. Porter, 526 N.W.2d 359, 365 (Minn.1995) (stating that one rationale is to avoid suggesting that the defendant has any burden of proof). But appellant had the burden of persuasion on the affirmative defense of reasonable refusal. See Minn.Stat. § 169A.53, subd. 3(c) (2002) (stating that reasonable refusal is an affirmative defense for test refusal). Appellant argued that the disease was a reason for his test refusal. It was not error for the prosecutor to comment on appellant’s failure to produce evidence on this issue. State v. Parker, 417 N.W.2d 643, 647 (Minn.1988) (“[I]t is questionable whether the prosecutor committed any misconduct, since the statement related to a matter on which defendant had the burden of proof.”).

But appellant was also charged with DWI, which he defended by attempting to show that the Addison’s disease was also an explanation for his display of indicia of alcohol. This defense attempts to negate an element of the prosecutor’s case, on which the burden of persuasion rests at all times with the prosecution. Thus, the jury could have taken the prosecutor’s comment regarding the lack of medical evidence to mean that appellant had some burden to disprove he was under the influence, and if this occurred, the comment would amount to misconduct.

Even where established, however, prosecutorial misconduct does not in and of itself require a new trial. State v. Scruggs, 421 N.W.2d 707, 715-16 (Minn.1988). Courts apply a harmless error analysis to determine whether prosecutorial misconduct warrants a new trial. State v. Caron, 300 Minn. 123, 127-28, 218 N.W.2d 197, 200 (1974). If a statement is improper, it is reviewed using a two-tier analysis that varies with the seriousness of the alleged improper statement. State v. Boitnott, 443 N.W.2d 527, 534 (Minn.1989). More serious misconduct will be deemed harmless beyond a reasonable doubt if the verdict rendered was surely unattributable to the misconduct; less serious misconduct is harmless if it likely did not play a substantial part in influencing the jury to convict. Powers, 654 N.W.2d at 678. Because the prosecutor had a right to comment on appellant’s failure to produce evidence in connection with the defense of reasonable refusal, we conclude that any misconduct was less serious. See Caron, 300 Minn. at 128, 218 N.W.2d at 200-01 (remarks on defendant’s failure to call witnesses, to which defendant did not object, treated as less serious misconduct).

We further conclude that to the extent the prosecutor’s argument may have left an erroneous implication, such error was harmless. Considerable evidence on the DWI charge was presented against appellant, including his own admission that he had consumed six beers, and the officer’s testimony that appellant smelled strongly of alcohol and that appellant’s eye were glassy and blood shot. See Parker, 417 N.W.2d at 648 (concluding that even if prosecutor’s statements were improper, the impropriety was harmless error due to the overwhelming evidence against the defendant). The prosecutor’s contested remarks were limited to four lines of roughly 13 pages of argument. See Johnson, 616 N.W.2d at 730-31 (stating appellate courts consider closing arguments as a whole rather than particular phrases). The court properly instructed the jury on the burdens of proof, and appellant did not object to the prosecutor’s remarks or ask for a curative instruction. See State v. Ives, 568 N.W.2d 710, 713 (Minn.1997) (failure to object implies that comments were not prejudicial). We caution, however, that where the defendant has the burden of persuasion on an affirmative defense, although the prosecutor may properly comment on the defendant’s failure to produce evidence in support of that defense, the prosecutor is under a duty to insure that the reference cannot be perceived by the jury to mean that the defendant has any burden of proof with respect to an element of any charge for which the defendant is on trial.

Because we conclude that any misconduct was not prejudicial, the district court did not abuse its discretion in denying appellant’s motion for mistrial.

2. Exclusion of Testimony

Our review of a district court’s evidentiary ruling on the admissibility of expert testimony is “very deferential.” Gross v. Victoria Station Farms, Inc., 578 N.W.2d 757, 760-61 (Minn.1998). We do not review such rulings de novo. See id. The ruling rests in the sound discretion of the district court and will not be reversed absent a clear abuse of discretion. State v. Ritt, 599 N.W.2d 802, 810 (Minn.1999). Appellant argues that the trial court abused its discretion in refusing to allow an emergency room doctor to testify about Addison’s disease. Under Minn. R. Evid. 702, testimony may be offered by a qualified expert if the “scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue.” The district court “scrutinize^] the proffered expert testimony as it would other evidence and excludefs] it when the testimony is irrelevant, confusing, or otherwise not helpful.” State v. Nystrom, 596 N.W.2d 256, 259 (Minn.1999).

Appellant attempted to call an emergency room doctor to testify about Addison’s disease in general. But defense counsel admitted that the doctor was not an expert with regard to Addison’s disease. In addition, the doctor had never treated appellant and had no personal knowledge of appellant’s experiences with the disease. We defer to the district court and conclude that the court did not abuse its discretion in precluding the doctor’s testimony about Addison’s disease.

3. Jury Instructions

Appellant argues that the trial court erroneously instructed the jury regarding reasonable refusal to test. Appellate courts afford significant discretion to district courts in crafting jury instructions. State v. Kuhnau, 622 N.W.2d 552, 555 (Minn.2001). Jury instructions must be viewed in their entirety to determine whether they fairly and adequately explain the law of the case. State v. Flores, 418 N.W.2d 150, 155 (Minn.1988).

As a threshold matter, appellant failed to object to the jury instructions at trial. See State v. Smith, 655 N.W.2d 347, 352 (Minn.App.2003) (party who fails to object generally waives the right to raise the issue on appeal). Where a defendant fails to object to a jury instruction, this court may only review for plain error of fundamental law or error that affects substantial rights. See State v. Gutierrez, 667 N.W.2d 426, 433 (Minn.2003) (applying the plain error rule to unobjected-to jury instructions); State v. Griller, 583 N.W.2d 736, 740 (Minn.1998) (defining plain error as: (1) error, (2) that is plain, and (3) affects substantial rights).

The district court instructed the jury on the elements of refusal to submit to testing and the affirmative defense of reasonable refusal:

Refusal to Submit to Testing Elements
The elements of refusal to submit to testing are:
First, a peace officer had probable cause to believe that the defendant drove, operated, or was in physical control of a motor vehicle while under the influence of alcohol. “Probable cause” means that it was more likely than not that the defendant drove, operated or was in physical control of a motor vehicle while under the influence of alcohol.
Second, the defendant was requested by a peace officer to submit to a chemical test of the defendant’s breath.
Third, the defendant refused to submit to the test.
■ Fourth, the defendant’s act took place on or about June 21, 2002 in Hennepin County.
If -you find that each of these elements has been proven beyond a reasonable doubt, the defendant is guilty. If you find that any element has not been proven beyond a reasonable doubt, the defendant is not guilty.
Refusal to Submit to Testing — Reasonable Refusal
If you find that the State has proven all four elements of this offense beyond a reasonable doubt, you must then decide whether the Defendant’s refusal to submit to the chemical test was reasonable.
The Defendant is not guilty of refusal to submit to testing if the Defendant’s refusal was reasonable. The burden of proof on this issue and only this issue is on the Defendant. The Defendant has the burden of proving this defense by the preponderance of the evidence. This means that the Defendant must prove that it is more likely true than not true that his refusal to take the test was reasonable.
For example, a Defendant’s refusal is reasonable when the officer gives confusing and misleading information to the Defendant regarding his rights or if the police have made no attempt to inform a confused Defendant of his obligation to submit to testing. The law only requires that the police officer read the printed advisory consent form to the defendant.

Appellant argues that the district court’s use of an example excluded any possibility that a physical, medical, or mental condition could constitute a reasonable refusal. We disagree.

The district court’s instruction was a substantially correct statement of the law. See Peterson v. State, 282 N.W.2d 878, 881 (Minn.1979) (holding no error of fundamental law or controlling principle where the instruction correctly states the elements of a charge). The court was careful to use the phrase, “[f]or example,” before the reference to the example of a reasonable refusal. Moreover, the jurors had written copies of the instruction when they went to deliberate; we assume the jury followed the court’s instructions. See State v. Pippitt, 645 N.W.2d 87, 94 (Minn.2002). We conclude that the instruction did not contain an error of fundamental law or controlling principle and that the district court did not abuse its discretion.

DECISION

Because any erroneous implication caused by the prosecutor’s remarks during closing argument was harmless, the district court did not abuse its discretion in denying appellant’s motion for a mistrial. The district court properly exercised its discretion in precluding an emergency room doctor from testifying about a condition in which he was not an expert and for which he had not treated appellant. The district court did not abuse its discretion by including an example of a reasonable refusal in the jury instructions.

Affirmed.

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


source: Caselaw Access Project

author: MARING, Justice.

license: Public Domain

text:
    2003 ND 183
    Jerry Lee BAY, Petitioner and Appellant, v. STATE of North Dakota, Respondent and Appellee.
    No. 20030145.
    Supreme Court of North Dakota.
    Dec. 2, 2003.

      Jerry Lee Bay (submitted on brief), pro se, Jamestown, N.D., petitioner and appellant.
    Cynthia Mae Feland, Assistant State’s Attorney, Bismarck, N.D., for respondent and appellee.
   MARING, Justice.

[¶ 1] Jerry Lee Bay appeals an order denying his petition for post-conviction relief, in which he requested to withdraw his guilty plea to Gross Sexual Imposition. He also appeals the denial of his motion to reconsider that petition. We affirm the orders.

I

[¶ 2] Bay entered a guilty plea, in the form of an Alford plea, to Gross Sexual Imposition in violation of N.D.C.C. § 12.1-20-03. After a pre-sentence investigation, the trial court sentenced Bay to ten years imprisonment with five years suspended and five years probation.

[¶ 3] Bay filed a petition for post-conviction relief to withdraw his guilty plea under N.D.R.Crim.P. 32(d) more than two years after he had entered his guilty plea. He made three arguments. First, Bay argued the sentence was a manifest injustice because the trial court failed to inform him before the acceptance of the plea that it was not required to accept the State’s recommended sentence. Second, he argued the trial court and the State violated his due process rights because they referenced the wrong child, M.G., instead of B.P. Last, Bay argued the police report was not filed until nine months after the incident, which he claimed was beyond the statute of limitations for this crime.

[¶ 4] The trial court denied the petition, concluding Bay understood at sentencing, that he was giving an open plea and that he understood an open plea means the trial court can impose whatever sentence it feels is appropriate. The trial court found that the court and counsel had mistakenly referred to the wrong child, but that during entry of the plea, the trial court referred to the correct child. Last, the trial court found Bay’s contention that the statute of limitations had run was without merit. The trial court also denied Bay’s motion for reconsideration, which we have considered as a motion to alter or amend the judgment under N.D.R.Civ.P. 59(j) or a motion under N.D.R.Civ.P. 60(b). Dvorak v. Dvorak, 2001 ND 178, ¶ 9, 635 N.W.2d 135.

[¶ 5] Bay appealed both the trial court’s denial of his post-conviction petition and his motion to alter or amend the judgment under N.D.R.Civ.P. 59(j). On appeal, he makes numerous evidentiary arguments. In addition, Bay argues that the trial court failed to inquire whether his plea had resulted from previous discussions with the prosecuting attorney and that the trial court did not advise him that it could reject the prosecutor’s recommended sentence. The State argues Bay has not satisfied his burden to show manifest injustice necessitating the withdrawal of his guilty plea.

II

[¶ 6] In his petition for post-conviction relief, Bay argued the trial court and the State violated his due process rights because they referenced the wrong child, M.G., instead of B.P. Bay also argued the police report was not filed until nine months after the incident, which he claimed was beyond the statute of limitations for this crime. Bay does not raise or brief these issues on appeal. Issues not briefed by an appellant are deemed abandoned. Boser v. Hanson, 2003 ND 95, ¶ 4, 663 N.W.2d 182. Therefore, we will not address these issues on appeal.

III

[¶ 7] When a defendant petitions for post-conviction relief seeking to withdraw a guilty plea, we generally treat the petition as one under N.D.R.Crim.P. 32(d). State v. Hendrick, 543 N.W.2d 217, 218 (N.D.1996). A defendant may not withdraw an accepted guilty plea unless withdrawal is necessary to correct a manifest injustice. Abdi v. State, 2000 ND 64, ¶ 10, 608 N.W.2d 292. A trial court’s decision as to whether a manifest injustice exists necessitating a withdrawal of a guilty plea lies within its discretion, and we will not reverse the decision on appeal absent an abuse of discretion. Hendrick, at 219. Under Rule 32(d), an abuse of discretion occurs if it is not exercised in the interest of justice. Abdi, at ¶ 10.

IV

[¶ 8] Bay argues he should have been allowed to withdraw his guilty plea because the trial court violated N.D.R.Crim.P. 11(c) and 11(d)(1) when it failed to inquire whether his plea had resulted from previous discussions with the prosecuting attorney and when it did not advise him it could reject the State’s recommended sentence. He claims these alleged violations create a manifest injustice. Rule 11(c) provides:

c) Insuring That the Plea is Voluntary. The court shall not accept a plea of guilty without first, by addressing the defendant personally [except as provided in Rule 43(c) ] in open court, determining that the plea is voluntary and not the result of force or threats or of promises apart from a plea agreement. The court shall also inquire as to whether the defendant’s willingness to plead guilty results from previous discussion between the prosecuting attorney and the defendant or the defendant’s attorney.

N.D.R.Crim.P. 11(c). Rule 11(d)(1) provides:

(1) In General. The prosecuting attorney, the attorney for the defendant, or the defendant when acting pro se may engage in discussions with a view toward reaching an agreement that, upon the entering of a plea of guilty to a charged offense or to a lesser or related offense, the prosecuting attorney will move for dismissal of other charges, or will recommend or not oppose the imposition of a particular sentence, or will do both. The court shall not participate in any such discussion.

N.D.R.Crim.P. 11(d)(1).

[¶ 9] Before a trial court accepts a guilty plea, it must advise the defendant of certain rights under N.D.R.Crim.P. 11. State v. Farrell, 2000 ND 26, ¶ 9, 606 N.W.2d 524. Rule 11 does not require ritualist compliance, but substantial compliance. Id. We have held that when a trial court fails to specifically ask if plea negotiations had taken place, Rule 11 is satisfied by clearly determining that the defendant understands the trial court is free to impose whatever sentence it feels is appropriate. Farrell, at ¶ 19; State v. Beckman, 1999 ND 54, ¶¶ 9-14, 591 N.W.2d 120.

[¶ 10] Bay agreed to change his plea of not guilty to Gross Sexual Imposition to guilty in exchange for a nonbinding sentence recommendation. When accepting Bay’s guilty plea, the trial court did not specifically ask Bay if his guilty plea was the result of plea negotiations with the State’s Attorney. Nevertheless, the trial court personally addressed Bay and asked him if he understood the trial court was “ultimately free to impose whatever sentence seems appropriate,” if he understood the time the trial court would consider plea agreements had “come and gone.” Bay answered “yes” to both questions without any evidence of confusion or hesitation. Bay himself admits, in his brief in support of post-conviction relief, that the State’s Attorney was only recommending a sentence. The trial court also asked Bay if he had been pressured or coerced to change his plea to guilty. He answers “no,” again without evidence of confusion or hesitation.

[¶ 11] In the trial court’s Memorandum and Order in response to Bay’s petition for post-conviction relief, it considered Bay’s argument and concluded it had satisfied Rule 11. It stated, “A review of the transcript of the sentencing proceeding indicates that the Court inquired of the defendant as to whether or not he was clear that he was entering an ‘open plea’ to the charges and that the Court would be free to impose whatever sentence it determined.” We agree and conclude that, as Fan-ell and Beckman require, the trial court determined that Bay knew it could impose whatever sentence it deemed appropriate, and it substantially complied with Rule 11.

[¶ 12] In addition, Bay mistakenly believes the trial court was required to inform him that it was not accepting the State’s Attorney’s recommendation and was required to allow him to withdraw his guilty plea. “A nonbinding recommendation of sentence and a binding plea agreement under N.D.R.Crim.P. 11(d) are significantly different.” Peltier v. State, 2003 ND 27, ¶ 10, 657 N.W.2d 238. The State fulfills its obligation in a nonbinding recommendation when it makes the recommendation. Id. However, the trial court may impose a harsher sentence without allowing the defendant to withdraw the guilty plea. Id. (emphasis added).

[¶ 13] We conclude the trial court satisfied Rule 11(c) and Rule 11(d)(1).

V

[¶ 14] Bay also argues the trial court should have permitted him to withdraw his guilty plea because the trial court did not follow the Rule 11 procedure when accepting his guilty plea. See N.D.R.Crim.P. 11. Specifically, Bay claims the trial court did not inform him of the maximum and any mandatory minimum punishment as required by Rule 11(b)(2). However, Bay failed to raise this issue to the trial court, and we will not address issues raised for the first time on appeal. See Peters-Riemers v. Riemers, 2002 ND 49, ¶ 9, 641 N.W.2d 88 (stating issues not raised to the trial court may not be raised on appeal).

VI

[¶ 15] Finally, Bay raises several arguments regarding the admissibility of evidence. However, Bay pled guilty to the charges involved in this post-conviction proceeding, and defendants who voluntarily plead guilty waive the right to challenge nonjurisdietional defects occurring before entry of the guilty plea. McMorrow v. State, 2003 ND 134, ¶ 5, 667 N.W.2d 577. Bay raises no argument regarding a jurisdictional defect. Because Bay voluntarily and knowingly pled guilty, he has waived his right to challenge the admissibility of evidence, and we will not address these arguments on appeal. In addition, Bay failed to raise these evidentiary issues to the trial court, and we will not address issues raised for the first time on appeal. See Peters-Riemers, 2002 ND 49, ¶ 9, 641 N.W.2d 83 (stating issues not raised to the trial court may not be raised on appeal).

VII

[¶ 16] We affirm the orders denying Bay’s petition for post-conviction relief and for reconsideration of that petition.

[¶ 17] GERALD W. VANDE WALLE, C.J., WILLIAM A. NEUMANN, DALE V. SANDSTROM, and CAROL RONNING KAPSNER, JJ., concur.


author: CARTER, Justice.

text:
    Linda JOHNSON, Appellant, v. HEARTLAND SPECIALTY FOODS, Appellee.
    No. 02-1285.
    Supreme Court of Iowa.
    Oct. 8, 2003.
    Rehearing Denied Dec. 12, 2003.
    Jason D. Neifert of Max Schott & Associates, P.C., Des Moines, for appellant.
    Maureen Roach Tobin of Whitfield & Eddy, P.L.C., Des Moines, for appellee.
   CARTER, Justice.

Linda Johnson, a workers’ compensation claimant, appeals from a decision on judicial review upholding the Industrial Commissioner’s determination that her claim is barred by the statute of limitations. After reviewing the record and considering the arguments presented, we reverse the judgment of the district court and remand the matter to the agency for further proceedings.

On May 30, 1995, the claimant was involved in a physical altercation with a coemployee in the workplace. She claims she was assaulted without provocation on her part. As a result of the altercation, claimant was suspended without pay for the rest of that working day. On June 6, 1995, claimant was seen by a doctor who determined that she was experiencing “anxiety-related problems related to work.” He advised the claimant not to work for two weeks and placed her on an anxiety medication. He also advised her to seek the services of a psychiatrist or psychologist.

Claimant was seen by a psychologist on June 29, 1995. On July 28, 1995, the psychologist wrote claimant’s employer and advised that she was suffering from depression and anxiety and was not yet able to return to work. He later sent an additional report to claimant’s employer indicating the following:

1. I do believe that the work incident at Heartland Specialty Foods when Linda was attacked by a coworker was a substantial factor in bringing about the treatment which she sought beginning in June of 1995.
2. The ongoing treatment which I am providing to her is related to her work incident of June, 1995.
3. I regard it as extremely unlikely that Linda will be able to return to the workforce.

At the time of the workers’ compensation arbitration hearing, claimant had not returned to work in any capacity since June of 1995.

Prior to seeking an arbitration hearing on her disability claim, claimant’s attorney corresponded with claimant’s employer concerning the facts of the case. In its written responses to those inquiries, the employer indicated on two occasions that the initial trauma had occurred on June 6, 1995. Relying on that date, claimant’s attorney calculated the period of limitations as being two years from June 6, 1995. After the workers’ compensation petition and original notice was filed on June 2, 1997, it was determined that the date of the altercation had actually been May 30, 1995.

Initially, the Industrial Commissioner disposed of the claim adversely to claimant on a motion for summary judgment. That ruling determined that the claim was barred because the proceeding was not commenced within two years from the date of the occurrence of the injury for which benefits were claimed as required by Iowa Code section 85.26(1). That determination was overturned on judicial review. In the subsequent arbitration hearing, the claim was again denied based on the employer’s statute-of-limitations argument under section 85.26(1). In so ruling, the Industrial Commissioner rejected claimant’s assertion of estoppel based on the misinformation provided by the employer as to the date of the traumatic event. The ruling that the case was barred by the statute of limitations was upheld on judicial review.

In seeking to overturn the decision of the Industrial Commissioner and the district court, claimant urges that her mental injury should be separated from the physical injury and that the accrual of her claim should not be found to have occurred until she had obtained knowledge that her mental condition prevented her from returning to work. That claim was rejected by the Industrial Commissioner and the district court, based on their analysis of Swartzendruber v. Schimmel, 613 N.W.2d 646 (Iowa 2000).

In Swartzendruber the claimant had alleged that a known traumatic event produced an immediately known injury and a latent injury that later developed into a substantial disability. We held that, because there was an immediately known physical injury, the time for the filing of a formal workers’ compensation claim began to run from the occurrence of that event and was not tolled because of the claimant’s lack of awareness of the latent condition. The employer urges that Swartzen-druber governs the present situation. We disagree.

Under the discovery rule, the time within which a proceeding must be commenced does not begin to run until the claimant, as a responsible person, should recognize the nature, seriousness, and probable compensable character of the condition. Orr v. Lewis-Cent. Sch. Dist., 298 N.W.2d 256, 261 (Iowa 1980). Claimant must know enough about the condition to realize that it is compensable. Id.; Mousel v. Bituminous Material & Supply Co., 169 N.W.2d 763, 766 (Iowa 1969). In the Swartzendruber case, the nature of the initial traumatic event was such that the claimant should have realized it produced a compensable injury to some extent. We believe such knowledge is lacking in the present case. The claimant’s initial absence from work was the result of a suspension imposed by her employer. There is no indication that she sustained any disabling physical injury as a result of the alleged assault upon her. Her first knowledge that she was suffering from a com-pensable condition appears to have come from her visit to the doctor on June 6, 1995. We are satisfied that the discovery rule serves to delay the commencement of the period of limitations until that date.

Although we would ordinarily remand this case to the Industrial Commissioner to make the requisite findings of fact concerning the lack of a prior compen-sable physical injury, the employer’s argument concedes that there was no prior compensable physical injury. The only compensable injury is the mental injury caused by a traumatic event that was not itself compensable as a physical injury. Accordingly, we determine as a matter of law that under the discovery rule claimant’s case is not barred by section 85.26(1). The proceeding is remanded to the Industrial Commissioner for further proceedings on the claim that are not inconsistent with this opinion.

REVERSED AND REMANDED.


text:
    STATE of Iowa, Appellee, v. Hubert Gene EVANS, Appellant.
    No. 01-1834.
    Supreme Court of Iowa.
    Oct. 8, 2003.
    Rehearing Denied Dec. 12, 2003.

      Dennis A. Bjorklund of Bjorklund Law Firm, LLC, Coralville, and Gary K. Koos, Bettendorf, for appellant.
    Thomas J. Miller, Attorney General, Sheryl A. Soich, Assistant Attorney General, William E. Davis, County Attorney, and Robert C. Bradfield, Assistant County Attorney, for appellee.
   CARTER, Justice.

The defendant, Hubert Evans, appeals from his conviction and sentence resulting from a jury verdict finding him guilty of harassment in violation of Iowa Code section 708.7(l)(b) (2001). He contends there is insufficient evidence to support the conviction, it violates his First Amendment rights to free speech, his sentence is unreasonable, and he suffered from ineffective assistance of counsel. The court of appeals affirmed defendant’s conviction and sentence. After reviewing the record and considering the arguments presented, we affirm the decision of the court of appeals and the judgment of the district court.

The evidence, as viewed most favorably toward the State, reveals the following facts. On May 9, 2001, defendant approached a woman in a Wal-Mart Store parking lot. She was returning to her vehicle after returning her cart to the cart bay. Defendant, who was standing on the driver’s side of her car, spoke to her and said that he believed his girlfriend would like a pair of shoes like the ones she was wearing. He inquired where she had purchased the shoes. The woman told him the name of the store and also the brand of the shoes. Defendant then asked the woman if he could see the shoe.

The woman removed her foot from one of the shoes, and defendant knelt down to examine it. At this time, he attempted to take hold of her foot. The woman pulled her foot away, slipped it into her shoe, and quickly entered her vehicle. Defendant commented that her feet were beautiful and that he just wanted to look at them. As defendant was driving away in his automobile, the woman wrote down his license number. He later pulled up next to her and smiled and waved. The woman later reported the incident to the police.

Defendant was charged with harassment and convicted by a jury. He was sentenced to an indeterminate term not to exceed two years, which was to run consecutively with an earlier harassment sentence.

I. Sufficiency of the Evidence.

Defendant argues that, in order to be guilty of harassment, one must have “the intent to threaten, intimidate, or alarm” the subject of the alleged harassment. This argument correctly states the intent element set forth in the statute defining the offense. It provides as follows:

A person commits harassment when the person, purposefully and without legitimate purpose, has personal contact with another person, with the intent to threaten, intimidate, or alarm that other person. As used in this section, unless the context otherwise requires, “'personal contact” means an encounter in which two or more people are in visual or physical proximity to each other. “Personal contact” does not require a physical touching or oral communication, although it may include these types of contacts.

Iowa Code § 708.7(l)(b).

Although defendant concedes that physical touching is not an element of the offense, he maintains that the evidence does not support an intent to threaten, intimidate, or alarm the subject of the contact. Threatening, intimidating, or alarming the subject of the contact would, defendant urges, have defeated his purpose in seeking to examine the woman’s feet. Defendant maintains he has a specific interest in women’s feet and is a published photographer of female feet.

Although the circumstances on which defendant relies might suggest the absence of the requisite intent, we are satisfied that a jury could find otherwise. Intent is a matter that is seldom capable of direct proof. Consequently, we have recognized that a trier of fact may infer intent from the normal consequences of one’s actions. State v. Chang, 587 N.W.2d 459, 462 (Iowa 1998); State v. Farnum, 554 N.W.2d 716, 720 (Iowa Ct.App.1996). It should not have been unexpected on defendant’s part that his conduct would alarm the subject of his contact. This would be a normal reaction from a female subject encouraged to display her feet under the circumstances presented here. That is particularly true when an attempt is made to touch her feet. Based on these considerations, we are satisfied that the evidence was sufficient to permit a reasonable jury to find that defendant acted with the intent necessary to constitute harassment under the statute.

II. The First Amendment Free Speech Argument.

Defendant urges that, because he was a published photographer of women’s feet, this criminal prosecution violates his First Amendment rights. We reject this claim. Assuming that there is a First Amendment right to publish photographs of women’s feet, that does not include a right to accomplish that objective in a manner that is intended to threaten, intimidate, or alarm the subject.

In State v. Fratzke, 446 N.W.2d 781, 788 (Iowa 1989), we held that First Amendment considerations raised with respect to subsection (l)(a) of this statute were obviated because of the requirement that the communication be “without legitimate purpose.” A similar requirement exists with respect to the contact that is criminalized under subsection (l)(b) of the statute. Because there must be a specific intent to threaten, intimidate, or alarm, the only legitimate purpose that will avoid the criminal status conferred by the statute would be a legitimate purpose to threaten, intimidate, or alarm. There is no claim that such purpose existed in the present case.

III. The Claim of Unreasonable Sentence.

Appellate review of the district court’s sentencing decision is for an abuse of discretion. State v. Laffey, 600 N.W.2d 57, 62 (Iowa 1999). An abuse of discretion is found when the court exercises its discretion on grounds clearly untenable or to an extent clearly unreasonable. Id. A court considers all pertinent matters in determining a sentence including the nature of the offense, the attending circumstances, defendant’s age, character, propensities, and chances of his reform. Id.

Defendant argues that, because the district court ordered his sentence to be consecutive to three other convictions, his sentence amounted to a total of ten years and is unreasonable. The State did not address this argument on appeal.

Iowa Rule of Criminal Procedure 2.23(3)(d) requires a sentencing judge to state the reasons for a particular sentence on the record. Although the reasons do not need to be detailed, they must be sufficient to allow appellate review of the discretionary action. State v. Jacobs, 607 N.W.2d 679, 690 (Iowa 2000). The sentencing judge must also give reasons for imposing consecutive sentences. Id.

In this matter, the sentencing judge gave several reasons for selecting the sentence that was imposed. These reasons included defendant’s criminal history, consisting of incarcerations in two other states and in Iowa three or four times; defendant’s past acts of harassment and indecent exposure, which suggested he was a threat to the women in the community; and the sentencing judge’s belief that concurrent sentences would not provide maximum rehabilitation. It would appear that the sentencing judge gave sufficient reasons for imposing a period of incarceration and further gave sufficient reasons for ordering consecutive sentences. Defendant’s challenge to the sentence imposed is rejected.

IV. Alleged Ineffective Assistance of Counsel.

Defendant’s ineffective-assistance-of-counsel claim is primarily premised on a failure to make an argument for protected speech under the First Amendment. Because we have considered that claim and rejected it on the merits, this may not be a basis for granting defendant relief on an ineffective-assistance-of-counsel theory. Defendant also claims in a pro se filing that his counsel’s appellate brief constituted ineffective representation. We have reviewed the arguments that counsel has made on defendant’s behalf and conclude that ineffective assistance of appellate counsel has not been demonstrated. We have considered all issues presented and conclude that the decision of the court of appeals and the judgment of the district court should be affirmed.

DECISION OF COURT OF APPEALS AND DISTRICT COURT JUDGMENT AFFIRMED.


author: G. BARRY ANDERSON, Judge.

text:
    Jong LEE, Appellant, v. REGENTS OF the UNIVERSITY OF MINNESOTA, et al., Respondents.
    No. A03-381.
    Court of Appeals of Minnesota.
    Nov. 25, 2003.

      Richard T. Wylie, Minneapolis, for appellant.
    Mark B. Rotenberg, General Counsel, Brian J. Slovut, Associate General Counsel, Office of the General Counsel, Minneapolis, for respondents.
    Considered and decided by WRIGHT, Presiding Judge, HARTEN, Judge, and G. BARRY ANDERSON, Judge.
   OPINION

G. BARRY ANDERSON, Judge.

Appellant Jong Lee challenges the district court’s grant of summary judgment arguing that (1) the district court was correct in determining the court had jurisdiction to review the Phase III panel decision; (2) the district court erred in determining the Phase III panel decision did not create enforceable contract rights; (3) the Minnesota Uniform Arbitration Act (“UAA”), Minn.Stat. § 572.18 (2002), and the Public Employee Labor Relations Act (“PEL-RA”), Minn.Stat. § 179A.13, subd. 1 (2002), apply to a Phase III panel decision; (4) the district court erred in dismissing Lee’s wrongful eviction claim because she was not given proper notice; and (5) the district court erred in dismissing her whistle-blower claim because the university retaliated against her when it chose not to inform university employees of the directive stated in the Phase III panel’s decision. Because we conclude that the district court did not err in its decision to grant summary judgment on all counts, we affirm.

FACTS

Appellant Jong Lee was an employee of the University of Minnesota’s Medical School from 1987 through 1998. Appellant is both female and a United States citizen of Korean national origin. Respondent university employed the other named respondents at various times and in various capacities.

In 1992, the university hired appellant as an unpaid visiting scholar in Dr. John Winklemann’s lab. While there, Wink-lemann permitted appellant to work on appellant’s protein project focusing on the development of pure human antibodies. Appellant showed Winklemann a report about her development and claims that Winklemann took a sample, along with her paper reporting her invention, and used the information without appellant’s authorization in a 1993 grant proposal. Appellant reported the incident to the university, but to no avail. After a second objection, a university patent attorney allegedly determined that the protein invention was in fact appellant’s. In June 1993, the university waived its rights to commercialization of the invention, and that same year, appellant applied for a patent, subsequently granted in 1998.

In August 1994, Dr. Thomas F. Ferris (a named defendant) and Dr. Silvia Azar appointed appellant to a 20% research associate position in the Renal Diseases and Hypertension Division in the Department of Medicine. Her position was temporary and annually renewable. Appellant continued her own experiments in Azar’s lab on her own time, with her own money, and with Azar’s permission. She continued to produce the antibodies, which she stored in the ultra-cold freezer in Azar’s lab.

Within the next six months, appellant presented two grant proposals for research funding; both were subsequently denied. Dr. Hostetter, on behalf of the university, informed appellant on March 15, 1996, that her position would not be renewed for the fiscal year beginning July 1, 1997. On or about April 26,1996, appellant filed a grievance arising out of the non-renewal and also challenged Hostet-ter’s denial of her grant proposals. On May 29, 1996, Hostetter withdrew the employment termination but required appellant to fund her own position.

On October 3, 1996, appellant filed a complaint with the University’s Academic Advisory Committee, alleging academic misconduct by Winklemann, claiming Winklemann’s grant application included her work without her authorization. After an investigation, it was determined that Winklemann committed neither academic misconduct nor any other inappropriate professional behavior.

On January 7, 1997, Frank Cerra, the Provost for the Academic Health Center, reinstated appellant to her previous position with back pay. Appellant then withdrew her grievance on February 6, 1997. Appellant continued to work in her position with no relevant events occurring for over a year. Then, on June 26, 1998, the university notified appellant that her position would not be renewed as of September 30, 1998. On August 11, 1998, appellant filed an internal grievance under the university’s procedures, alleging the termination of her position was based on retaliation and discrimination. She also objected to the monitoring of her daily activities and limitations on her laboratory access, and she asserted the existence of a hostile work environment. Appellant sought reinstatement to her position with full grant application opportunities, lab access, and other relief.

The University Grievance Policy (“UGP”) provides for four phases of review. Phase I is an informal meeting between the grievant and the administrator responsible for the challenged decision. Phase II is a meeting between the griev-ant and the supervisor of the administrator. Phase III is a hearing before a three-person panel with limited powers. The panel may grant back pay, restore benefits actually lost, and reinstate the employee. Phase IV is arbitration.

On August 25, 1999, a three-member Phase III panel heard appellant’s grievance. The panel issued a report on October 15, 1999, upholding appellant’s termination and declining to reinstate the appellant. The panel concluded that there was “no clear evidence that the [appellant] was discriminated against on the basis of ethnicity or gender, or that the [appellant] was retaliated against by the [u]niversity.” The panel, however, noted that although no rules were violated, there was “persuasive evidence of undesirable professional behavior toward the [g]rievant and lack of guidance of the [g]rievant.” The decision of the panel was as follows:

(1) the University has violated no regulations, and that no relief be granted to the Grievant, and
(2) that the Medical School be directed to refrain from impeding the Grievant’s professional future, either within or outside the University of Minnesota.

The University Grievance Officer notified appellant in a memorandum that “[i]f the Phase III panel decision is favorable to the grievant, the [u]niversity will implement it.... If the decision ... is not favorable to the grievant, the grievant may choose to proceed to Phase IV arbitrationAp-pellant did not appeal the decision to Phase IV arbitration.

After the panel issued its decision, appellant continued to use Azar’s lab both for her own work and to help Azar with her research. Before January 2000, the university never demanded rent from appellant for the lab, never asked her to leave, and never brought a court action to have her vacate. By January 2000, appellant had collected over 28,000 ml of antibodies requiring storage in an ultra-cold freezer. Then, because of planned remodeling, the university posted a sign on the laboratory doors stating, “Construction is to begin in these laboratories. Locks will be changed and access denied as of January 31, 2000. Please have any personal belongings removed by that date.” Appellant located a replacement for the ultra-cold freezer she had been using in Azar’s lab, found lab space near the university, and purchased replacement equipment to continue her work. Approximately a month after the university’s deadline to move from the premises, the replacement freezers failed and most of her samples were destroyed. Appellant never complained that the notice to vacate was inadequate, and she did not seek a remedy from the university until after the replacement freezers malfunctioned.

ISSUES

I. Did the district court properly dismiss appellant’s claims for the alleged failure to comply with the grievance decision?

II. Did the district court properly dismiss appellant’s claim for wrongful eviction?

III. Did the district court properly dismiss appellant’s whistleblower claim?

ANALYSIS

On appeal from summary judgment, we ask two questions: (1) whether there are any genuine issues of material fact and (2) whether the district court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990). A motion for summary judgment shall be granted when the “pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that either party is entitled to a judgment as a matter of law.” Minn. R. Civ. P. 56.03; Asmus v. Ourada, 410 N.W.2d 432, 434 (Minn.App.1987). “On appeal, the reviewing court must view the evidence in the light most favorable to the party against whom judgment was granted.” Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn.1993) (citation omitted). A genuine issue of material fact exists when the nonmoving party presents evidence that creates a doubt as .to a factual issue that is “probative with respect to an essential element of the nonmoving party’s case to permit reasonable persons to draw different conclusions.” DLH, Inc. v. Russ, 566 N.W.2d 60, 71 (Minn.1997). “[T]he party resisting summary judgment must do more than rest on mere averments.” Id. A genuine issue for trial must be established by substantial evidence. Id. at 69-70.

Whether a court has subject-matter jurisdiction is a question of law and is reviewed de novo. Handicraft Block Ltd. P’ship v. City of Minneapolis, 611 N.W.2d 16, 20 (Minn.2000).

I. Dismissal of appellant’s claims for the alleged failure to comply with the grievance decision

Respondents argue the district court lacked subject-matter jurisdiction to hear appellant’s grievance-related claims because the university is entitled to deference in its decision-making and internal management processes, and because judicial review of Phase III determinations is only available by certiorari. See Univ. of Minn. v. Woolley, 659 N.W.2d 300, 306 (Minn.App.2003), review denied (Minn. Jun. 17, 2003). But in Woolley, where the court determined a Phase III decision was subject to certiorari review, the appellant did not have statute-based claims from which to appeal the Phase III decision.

Statutory claims are not limited to certiorari review, and are within the district court’s jurisdiction. See, e.g., Willis v. County of Sherburne, 555 N.W.2d 277, 283 (Minn.1996) (claiming under the Minnesota Human Rights Act); Woolley, 659 N.W.2d at 303 (claiming under the Uniform Arbitration Act). The specific statutes need not be directly cited in the pleadings. Abraham v. County of Hennepin, 639 N.W.2d 342, 354-55 (Minn.2002). Here, appellant is not challenging the Phase III panel decision upholding her termination, but instead is bringing claims under the UAA, the PELRA, and under Minn.Stat. §§ 557.08 and 557.09 (2002) for wrongful eviction. Therefore, the district court was not limited to certiorari review, and had proper jurisdiction to hear the statutory claims. With respect to appellant’s contract claim for violation of the panel decision, we conclude that because the claim does not involve an inquiry into the university’s decision to terminate appellant’s employment, but instead involves the university’s alleged noncompliance with the panel’s order directing the medical school to refrain from impeding appellant’s professional future, the district court has jurisdiction to hear the claim. See Navarre v. S. Wash. County Schs., 652 N.W.2d 9, 31-32 (Minn.2002) (stating respondent’s claim for lost wages was not barred by her failure to pursue arbitration because she was not seeking to recover lost wages under her employment contract, but was seeking to recover lost wages for her alleged constructive discharge that resulted from alleged violations of the MGDPA). Therefore, we affirm the conclusion that the district court had jurisdiction to consider appellant’s claims.

Respondent argues alternatively that even if “enforcement” could be separated from Phase III, appellant’s claim would still fail because she did not exhaust her administrative remedies. Respondent states that because appellant’s claim is that the university did not implement the Phase III decision, it is a claim that falls within the subject-matter of the University Grievance Policy (“UGP”). Therefore, appellant should be required to pursue the claim under that policy before seeking judicial review. This would require pursuing a grievance for the violation of the policy, and then seeking a writ of certiorari.

This court has recognized that a university employee challenging an adverse employment decision by the university “must exhaust the grievance process applicable to [the] position before seeking review by writ of certiorari.” Woolley, 659 N.W.2d at 305 (citing Stephens v. Bd. of Regents of Univ. of Minn., 614 N.W.2d 764, 774 (Minn.App.2000), review denied (Minn. Sept. 26, 2000)). But in Woolley, the court determined that a Phase III determination was a final administrative decision subject to review. 659 N.W.2d at 306. Because appellant’s claim does not involve an inquiry into the university’s decision to terminate appellant’s employment, but instead involves the university’s alleged noncompliance with the panel’s order, the appellant may appeal the Phase III final decision, and is not limited to certiorari review.

Appellant contends that the Phase III order issued by the university panel, which included language instructing the university not to “[impede her] professional future,” granted her contractual rights enforceable against the university. The UGP provides as to Phase III:

If the Phase III panel decision is favorable to the grievant, the University will implement it, unless the Senior Vice President for Academic Affairs delivers a written notice to the UGO and the grievant within ten (10) work days of the receipt of the Phase III panel’s decision stating that the decision is not acceptable and the reasons why it is not acceptable. In this event, the grievant may request Phase IV arbitration.
If the decision of the Phase III panel is not favorable to the grievant, the grievant may choose to proceed to Phase IV arbitration. If the Phase III decision is not acceptable to the University, or if it is not favorable to the grievant, the grievant must deliver a written notice of intent to proceed to Phase IV to the UGO and the Phase III University representative within ten (10) work days after the grievant received the Phase III hearing panel decision or the Senior Vice President’s notice, whichever occurred last, unless there are compelling reasons for delay.

The policy also states, “[i]t is the responsibility of the [u]niversity to faithfully carry out its responsibilities under this policy, and to enforce the terms of any binding decision under this policy.”

Appellant’s argument, that the university had a binding obligation to provide facilities for her research as a result of the panel’s order, is contrary to both the UGP and to the panel’s decision. The UGP states that while it “does not, and is not intended to, create any legal rights for faculty members, students, staff, or other persons, and is not part of any contract between the [ujniversity and its employees or any other individual,” an arbitration award “is legally final and binding on both the [u]niversity and the employee.” Appellant did not proceed to Phase IV arbitration; according to the plain language of the policy, appellant did not obtain any legal rights.

The appellant also requested relief in the form of continued access to university facilities. The panel could not have been more clear; it denied all relief requested by appellant. Further, even if the panel wanted to confer certain rights on appellant, it was without authority to do so. The UGP limits the authority of the panel to granting “back pay and benefits actually lost, together with reinstatement.” Creating a right, contractual or otherwise, of professional safe passage for appellant was beyond the jurisdiction of the panel and any apparent contract or right is void. See, e.g., Martin v. Common Sch. Dist., 163 Minn. 427, 429, 204 N.W. 320, 320 (1925) (holding a teacher’s ultra vires contract void).

Because the plain language of the UGP states that contractual rights are to be reserved for Phase IV determinations, and because the Phase III panel determined appellant was not entitled to relief, there are no material facts at issue. Therefore, we affirm the distinct court’s conclusion that the panel decision created no lights for the appellant to enforce.

Appellant also challenges the dismissal of claims brought under the UAA and the PELRA. The UAA states that “[t]he making of an agreement described in section 572.08 providing for arbitration in this state confers jurisdiction on the court to enforce the agreement.... ” Minn. Stat. § 572.24 (2002). An “agreement” is “[a] written agreement to submit any existing controversy to arbitration.... ” Minn.Stat. § 572.08 (2002). Characterizing Phase III as “arbitration,” as appellant essentially does, is contrary not only to the plain meaning of the university’s policy but also contrary to the instruction in Woolley, which found only Phase IV to be subject to the UAA, and proceedings prior to Phase IV reviewable only by certiorari. See 659 N.W.2d at 306. Additionally, there is no written arbitration agreement, a requirement of the UAA. See Minn.Stat. § 572.08. Appellant has no rights relevant to this proceeding under the UAA.

The PELRA also does not apply because appellant has not met a condition precedent to a PELRA claim. Appellant failed to file a copy of the complaint with the Commissioner of the Bureau of Mediation Services at the time the complaint was filed with the district court. See Minn. Stat. § 179A.13, subd. 1. Appellant asserts that because the filing of the complaint is only a “procedural requirement,” the university must show prejudice in appellant’s noncompliance. This assertion is incorrect. The party challenging a district court ruling on a procedural requirement bears the burden of demonstrating prejudice. See Midway Ctr. Assocs. v. Midway Ctr., Inc., 306 Minn. 352, 237 N.W.2d 76, 78 (1975) (noting unless the district court error is prejudicial, no grounds exist for reversal). A court must give effect to the plain meaning of statutory language. See State v. Iverson, 664 N.W.2d 346, 350-51 (Minn.2003) (stating the best method of determining legislative intent is by relying on the plain meaning of the statute; the court will only look beyond the plain meaning if the text is ambiguous). Because appellant did not file a complaint with the commissioner, the PELRA claim fails, and we need not determine whether PELRA provides an enforceable right under the facts at issue here.

II. Dismissal of appellant’s claim for wrongful eviction

Appellant argues she was wrongfully evicted from the university lab she was utilizing for her personal research purposes. Appellant argues that she was a tenant-at-will, and could only be removed after receiving written notice one full calendar month prior to eviction. Cf. Thompson v. Baxter, 107 Minn. 122, 124, 119 N.W. 797, 798 (1909) (noting permission is all that is needed from an owner to create a tenancy-at-will; rent or other obligations are not needed). But to be a laboratory tenant, appellant would , need a landlord and that landlord must possess the ability to convey to appellant an interest in the laboratory. See Mid-City Hotel Assoc. v. Prudential Ins. Co., 114 B.R. 634, 641 (Bankr.D.Minn.1990) (stating a tenant “is one who holds or possesses lands or tenements by any kind of right or title, whether in fee, for life, for years, at will or otherwise”) (emphasis added and citation omitted). While it is undisputed that Dr. Azar gave appellant permission to use the laboratory, appellant introduced no evidence regarding the relationship between Dr. Azar and the university showing that Dr. Azar had, or could convey to appellant, an interest in the laboratory, and the district court found that Dr. Azar lacked the authority to do so. Thus, the record currently before this court cannot support a determination that appellant is a tenant.

If a licensee has property on the premises in question, she is entitled to “reasonable notice” of the revocation of her right to use the premises. Ingalls v. St. Paul, Minneapolis & Manitoba Ry., Co., 39 Minn. 479, 481, 40 N.W. 524, 525 (1888). Here, the district court ruled that appellant was a “guest” but applied the licensee “reasonable notice” analysis. The facts of this case make it clear that the appellant was a licensee rather than a guest. Compare Black’s Law Dictionary 932 (7th ed.1999) (defining licensee as “[o]ne who has permission to enter or use another’s premises, but only for one’s own purposes and not for the occupier’s benefit”), with Black’s Law Dictionary 714 (7th ed.1999) (defining guest as “[a] person who is entertained or to whom hospitality is extended”). Therefore, while the district court incorrectly labeled appellant’s status, it used the correct notice analysis by concluding appellant was entitled to reasonable notice. Here, appellant was given 12 days notice to leave the lab and she challenges the district court’s determination that this notice was reasonable. While generally what is reasonable is a factual question precluding summary judgment, when the record allows only one conclusion on the subject, the question may be resolved as a matter of law. See Abo El Ela v. State, 468 N.W.2d 580, 582-83 (Minn.App.1991) (holding while negligence is usually inappropriate for summary judgment because it involves the jury’s assessment of reasonableness and causation, a district court may enter summary judgment when the undisputed material facts compel only one conclusion as a matter of law).

Here, it is undisputed that (a) after receiving notice to leave the lab, appellant found an alternate freezer in which to store her samples; (b) despite her then-existing proceedings against the university, appellant did not allege that she was not given reasonable notice until after the alternate freezer failed, ruining most of her samples; and, (c) the failure of the alternate freezer is unrelated to the notice to leave the lab. On this record, we can conclude only that appellant’s eviction claim was prompted not by the allegedly inadequate notice, but by the subsequent loss of her specimens in a freezer failure that was unrelated to the notice. Therefore, appellant has not shown the existence of a factual question regarding the reasonableness of the notice and we will not reverse the district court’s grant of summary judgment on appellant’s wrongful eviction claim.

III. Dismissal of appellant’s whistleblower claim

Appellant asserts a cause of action under the Whistleblower Act because the university purposefully failed to instruct the medical school about the Phase III directive in retaliation against her for making complaints of academic misconduct. The Whistleblower Act makes it illegal to “otherwise discriminate against, or penalize” a whistleblower. Minn.Stat. § 181.932, subd. 1 (2002). The statute requires an employer-employee relationship. See id. (“An employer shall not discharge, discipline, threaten, otherwise discriminate against, or penalize an employee.”). In order to present a prima facie case for whistle-blowing protection, there must be “(1) statutorily-protected conduct by the employee; (2) adverse employment action by the employer; and (3) a causal connection between the two.” Cokley v. City of Otsego, 623 N.W.2d 625, 630 (Minn.App.2001) (citation omitted), review denied (Minn. May 15, 2001).

Here, there is no adverse employment action. To satisfy the adverse employment action element, the employee must establish the employer’s conduct resulted in a “material change in the terms or conditions of her employment.” Ledergerber v. Stangler, 122 F.3d 1142, 1144 (8th Cir.1997) (emphasis added). An “employee” is defined as a “person who performs services for hire in Minnesota for an employer.” Minn.Stat. § 181.931, subd. 2 (2002). At the time appellant is alleging retaliation took place, appellant was no longer an employee. Appellant argues that whistleblower protection extends to former employees, citing litigation involving Title VII claims including Robinson v. Shell Oil Co., 519 U.S. 337, 344, 117 S.Ct. 843, 848, 136 L.Ed.2d 808 (1997) (holding “employee” extends to former employees for retaliation purposes under Title VII), and Smith v. St. Louis Univ., 109 F.3d 1261, 1266 (8th Cir.1997) (noting that Title VII’s protections from retaliation extend to former employees). But appellant’s Title VII claims are not on appeal. Further, we held in Guercio v. Prod. Automation Corp., 664 N.W.2d 379, 389 (Minn.App.2003), that “the whistleblower act only applies to current employees” in Minnesota. Because we conclude that the Minnesota whistleblower act does not protect former employees, we need not consider whether appellant proved the other elements to establish a prima facie violation of the act, and because there are no material fact issues surrounding whether an adverse employment action took place, we affirm the district court’s dismissal of the whistle-blower claim.

DECISION

The district court did not err in dismissing appellant’s claims for the alleged failure to comply with the grievance decision, for wrongful eviction, or for violation of the Whistleblower Act.

Affirmed.

      . The statute here reads: “A copy of any complaint alleging an unfair labor practice must be filed with the commissioner at the time it is brought in district court.” Minn. Stat. § 179A.13, subd. 1.


text:
    IRWIN UNION BANK AND TRUST COMPANY, a Washington corporation, Respondent, v. SPEEDY CAR WASH, INC., a Texas corporation, et al., Defendants, v. Raymond L. Zeug, Appellant.
    No. A03-559.
    Court of Appeals of Minnesota.
    Dec. 16, 2003.

      Eric W. Forsberg, Minneapolis, MN, for appellant.
    George E. Warner, Jr., Scott A. Lifson, Bernick and Lifson, Minneapolis, MN, for respondent.
    Considered and decided by Randall, Presiding Judge; Minge, Judge; and Poritsky, Judge.
   OPINION

PORITSKY, Judge.

Respondent, a foreign corporation, obtained a default judgment in Texas against appellant. Respondent filed in Hennepin County district court a certified copy of the foreign judgment, together with an ex parte application for prejudgment garnishment of appellant’s Minnesota assets. The district court issued an order permitting respondent to immediately issue a garnishment summons. After the summons was served, appellant moved to vacate the garnishment. His motion was denied. Because we hold that for a prejudgment garnishment summons to issue, a summons and complaint in a Minnesota action must be filed and subsequently served, we reverse.

FACTS

In October 2002, respondent Irwin Union Bank and Trust Company (“the bank” or “Union Bank”) obtained a default judgment for $66,450 plus interest of $2,731 and attorney fees of $22,150 against appellant Raymond L. Zeug in Bexar County, Texas. Zeug maintained a bank account at the State Bank of Lucan in Lucan, Minnesota.

In March 2003, Union Bank filed with Hennepin County District Court a certified copy of the Texas judgment, an ex parte application for prejudgment garnishment, and a supporting affidavit informing the court that “[the bank] is reliably informed that were ... Zeug given advance notice of a garnishment or other proceedings in Minnesota to domesticate or enforce the Texas judgment, [Zeug] would assign, secrete, or dispose of [his] non-exempt property presently on deposit with the State Bank of Lucan.” The bank did not file a Minnesota summons and complaint. The district court, citing the prejudgment garnishment statute (MinmStat. §§ 571.93, .931, .932, (2002)), authorized the bank to issue a garnishment summons, and the State Bank of Lucan froze Zeug’s account. Zeug served and filed a motion to vacate the garnishment. Following a hearing, the district court denied Zeug’s motion. He challenges that denial.

ISSUE

May a foreign-judgment creditor garnish the judgment debtor’s assets under Minn.Stat. §§ 571.93 and 571.931 (2002) without filing and subsequently serving a summons and complaint in a Minnesota action?

ANALYSIS

The construction of a statute is a question of law, which this court reviews de novo. Brookfield Trade Ctr., Inc., v. County of Ramsey, 584 N.W.2d 390, 393 (Minn.1998). The facts in this matter are undisputed. Whether a statute applies to the undisputed facts of a case is a question of law; the district court’s decision does not bind this court. O’Malley v. Ulland Bros., 549 N.W.2d 889, 892 (Minn.1996).

Zeug argues that to proceed on the Texas judgment in Minnesota, “the bank had two choices, either to commence a new action by serving the summons and complaint upon Zeug or by use of the procedures set forth in the Uniform Enforcement of Foreign Judgments Act ...” (UEFJA). The bank did not proceed under the UEFJA. Instead it proceeded under Minn.Stat. §§ 571.93 and 571.931 (2002). Section 571.93, subdivision 1 reads in relevant part:

The court may order the issuance of a garnishment summons before judgment or default in the civil action, if a summons and complaint, or copies of these documents, are filed with the appropriate court, and if, upon application to the court, it appears that any of the following grounds exist:
(1) the debtor has assigned, secreted, or disposed of, or is about to assign, secrete, or dispose of, any of the debt- or’s nonexempt property, with intent to delay or defraud any of debtor’s creditors;
.... or
(6) the purpose of the garnishment is to establish quasi in rem jurisdiction and
(ii) a judgment had previously been obtained in another state consistent with due process....

Minn.Stat. § 571.93, subd. 1 (2002) (emphasis added).

The bank sought to enforce its Texas judgment against Zeug by filing an ex parte application for pre-judgment garnishment of Zeug’s Minnesota bank account. The application stated that the effect of the garnishment “will be to establish quasi in rem jurisdiction over ... Zeug for the purpose of enforcing the Texas judgment” and that “[a] judgment has previously been obtained against ... Zeug in another State consistent with due process.” It also said that “[the bank] reasonably believes that if given prior notice of [the bank’s] garnishment ... Zeug would assign, secrete, or otherwise dispose of non-exempt property with the intent to delay and frustrate the efforts of [the bank] to enforce the judgment against ... Zeug.” But, as we have noted, the bank did not file a Minnesota summons and complaint, nor does it appear from the record that a Minnesota summons and complaint were subsequently served on Zeug.

We conclude that in order to proceed under sections 571.93 and 571.931, a foreign-judgment creditor must give the Minnesota court jurisdiction by filing and subsequently serving a summons and complaint, thus starting a separate action in this state. The prejudgment garnishment statute specifically provides for a foreign-judgment creditor to obtain quasi-in-rem jurisdiction over the debtor’s Minnesota assets. Minn.Stat. § 571.93, subd. l(6)(ii) (2002). Once the creditor complies with the requirements of the prejudgment garnishment statute, the creditor can take advantage of the procedures available under the statute, including serving a garnishment summons before giving notice to the debtor. Minn.Stat. §§ 571.93- 931 (2002).

The bank states that it “filed an action in Hennepin County and argues that it “filed a civil action with the appropriate court and proceeded by written application.” What the bank filed, however, was the Texas judgment. Filing a foreign judgment does not satisfy the statute. The plain language of the statute requires the filing of, “a summons and complaint, or copies of these documents.... ” Minn. Stat. 571.93, subd.l (2002). And when the legislature chose to refer to a foreign judgment, it expressly used the language “a judgment ... previously ... obtained in another state.” Minn.Stat. § 571.93, subd. l(6)(ii) (2002). The statute specifies both the obtaining of a foreign judgment and the filing of the Minnesota action. Thus, the legislature did not intend that filing a foreign judgment was to be the equivalent of filing a Minnesota summons and complaint. The prejudgment garnishment statute goes on to provide that, if a garnishment summons issues before hearing, as it did in this case, a creditor is to serve “a copy of all pleadings and other documents not previously served.... ” Minn. Stat. § 571.931, subd. 6 (2002). Such service is to be accomplished “in the manner prescribed for personal service of a summons, unless that service is impracticable or would be ineffective, and the court prescribes an alternative method of service.” Id. Thus, the prejudgment garnishment statute contemplates that a summons and complaint are to be filed with the court and subsequently served, thereby initiating a Minnesota action. Minn. R. Civ. P. 3.01(a) (“A civil action is commenced against each defendant when the summons is served upon that defendant.”) We conclude that, because the bank failed to comply with the requirements of section 571.93, the garnishment summons is void.

Zeug also argues that the garnishment is void because the bank did not comply with the UEFJA when it initiated a proceeding prior to the expiration of the twenty-day notice period provided for in the UEFJA, in Minn.Stat. § 548.28 (2002). Because the bank did not proceed under the UEFJA, and because we have concluded that the garnishment summons is void by reason of the bank’s failure to comply with the provisions of the prejudgment garnishment statute, we need not address this argument.

DECISION

We conclude that a foreign-judgment creditor may not garnish a judgment debt- or’s assets under Minn.Stat. §§ 571.93 and 571.931 (2002) without first filing and subsequently serving a summons and complaint in a Minnesota action. Therefore, we reverse the denial of Zeug’s motion to vacate the garnishment.

Reversed.

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

      . In the case of a garnishment summons issued after notice and hearing, the applicable statute contemplates that an action will have been initiated. The statutory notice to the debtor reads in part, ‘‘[T]he court will decide whether your property should be garnished until the lawsuit which has been commenced against you has been decided.” Minn.Stat. § 571.932, subd. 2 (2002) (emphasis added).