author: MEYER, Justice. PAGE, Justice

text:
    David C. OLMANSON, Respondent, v. LeSUEUR COUNTY, Shoreland Recreational Cooperative, d/b/a Shoreland Country Club, Appellants.
    No. A03-629.
    Supreme Court of Minnesota.
    March 31, 2005.

      Noel L. Phifer, Gislason & Hunter, L.L.P., New Ulm, MN, for appellant Shoreland Recreational Cooperative d/b/a Shoreland Country Club.
    Thomas P. Carlson, Carlson & Soldo, P.L.L.P., Vadnais Heights, MN, for appellant LeSueur County.
    Kay Nord Hunt, Robert J. King, Lorn-men, Nelson, Cole & Stageberg, P.A., Minneapolis, MN, for respondent.
   OPINION

MEYER, Justice.

In this case we are asked to decide whether the 10-year statute of repose provision in Minn.Stat. § 541.051, subd. 1(a) (2004), applies to claims for negligence based on a landowner’s common-law duty to inspect and maintain the property. The court of appeals held that the claims were not time-barred by the statute. We affirm.

Appellant Shoreland Recreational Cooperative (Shoreland) owns and operates an 18-hole golf course with golf holes on both sides of LeSueur County Road 21. Sometime prior to 1989, Shoreland designed and built a golf cart culvert under County Road 21 to allow golfers access to the golf course on both sides of the road. The opening of the culvert is 5 feet wide and 7 feet high and the top of the culvert is located 76 inches from the edge of the pavement on County Road 21. The east side of the culvert is marked by a 2-by-4 board on iron posts located above the culvert opening. Appellant LeSueur County (the county) and Shoreland do not know when the barricade was placed and who placed it there. The culvert opening on the west side of County Road 21 is unmarked and unguarded. Shoreland acknowledges that it owns the property where the culvert is located, and the county acknowledges that it holds a prescriptive easement over the property, which entitles the county to use it for road purposes.

In the afternoon and early evening of February 18, 2000, respondent David C. Olmanson went snowmobiling with friends in and around St. Peter, Minnesota. The snowmobilers rode primarily on trails and in the ditches along state and county roads, including County Road 21. On his way home, Olmanson was driving his snowmobile in the ditch on the east side of County Road 21. He decided to cross from the ditch on the east side of County Road 21 to the ditch on the west side. As he crossed the road and headed down the ditch, the snowmobile went off the edge of the golf cart culvert and struck the culvert’s side wall. Olmanson was thrown from the snowmobile and injured.

Olmanson brought a negligence claim against the county and Shoreland in Le-Sueur County District Court. The county and Shoreland moved for summary judgment, arguing that the statute of repose for improvements to real property, Minn. Stat. § 541.051, barred Olmanson’s suit, and that neither the county nor Shoreland had a duty to warn entrants of the existence of the culvert. The county also claimed statutory and official immunity. The district court denied summary judgment based on immunity and failure to warn, but granted summary judgment based on the statute of repose. The court of appeals affirmed the denial of summary judgment based on immunity but reversed the grant of summary judgment based on the statute of repose, holding that under the statute of repose, the duty to warn is inherent in a landowner’s duty both to maintain and inspect. Olmanson v. Le-Sueur County, 673 N.W.2d 506 (Minn.App. 2004). We granted review on the issue of the statute of repose. We affirm the decision of the court of appeals.

I.

This case comes before us on an appeal from summary judgment. On appeal from summary judgment, we must determine whether there are any genuine issues of material fact, and whether the lower court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990); see also Minn. R. Civ. P. 56.03. The construction of a statute is a question of law, which this court reviews de novo. Ryan v. ITT Life Ins. Corp., 450 N.W.2d 126, 128 (Minn.1990).

When determining the meaning of a statute, we are guided by several principles of statutory construction. Our primary object is to interpret and construct laws so as to ascertain and effectuate the intention of the legislature. Mankato Citizens Tel. Co. v. Comm’r of Taxation, 275 Minn. 107, 111, 145 N.W.2d 313, 317 (1966); Minn.Stat. § 645.16 (2004). When the words of a statute are clear and free from all ambiguity, this court looks only to its plain language. Owens v. Water Gremlin Co., 605 N.W.2d 733, 736 (Minn.2000). If a statute is ambiguous, the construction that avoids constitutional problems should be used, even if such a construction is less natural. State on Behalf of Forslund v. Bronson, 305 N.W.2d 748, 751 (Minn.1981).

Minnesota Statutes § 541.051 (2004), is a statute of repose for injuries arising out of real property improvements. The pertinent statutory language is as follows:

(a) Except where fraud is involved, no action by any person in contract, tort, or otherwise to recover damages for any injury to property, real or personal, or for bodily injury or wrongful death, arising out of the defective and unsafe condition of an improvement to real property, nor any action for contribution or indemnity for damages sustained on account of the injury, shall be brought against any person performing or furnishing the design, planning, supervision, materials, or observation of construction or construction of the improvement to real property or against the owner of the real property more than two years after discovery of the injury * * * nor, in any event shall such a cause of action accrue more than ten years after substantial completion of the construction.
(c) Nothing in this section shall apply to actions for damages resulting from negligence in the maintenance, operation or inspection of the real property improvement against the owner or other person in possession.

Minn.Stat. § 541.051, subd. 1.

Shoreland and the county argue that the language of subdivision 1(a) is clear and unambiguous and operates to expressly bar Olmanson’s claim. They reason that (1) the golf cart culvert was completed more than 10 years before Olmanson’s accident; (2) the culvert is an improvement to real property; (3) Olmanson’s claim is against the owners of the culvert; and (4) Olmanson’s claim arises out of the defective and unsafe condition of the culvert. Under these facts, appellants contend, subdivision 1(a) explicitly bars Olmanson’s claim.

Olmanson asserts that his injury arose from the county and Shoreland’s negligence in inspecting the culvert and then-resulting failure to notice that it was dangerous. Olmanson argues that had Shore-land and the county properly inspected the culvert, they would have known that the roadside ditch was commonly used by snowmobiles, and that the culvert created a dangerous condition because it was unguarded and unmarked. Olmanson argues that subdivision 1(c), the “maintenance, operation or inspection” exception, applies to preserve his claim. Specifically, Olmanson claims that this exception preserves the common-law duty of reasonable care owed by landowners to entrants, as evidenced by the use of negligence terminology in the subdivision.

We agree with Olmanson’s interpretation of Minn.Stat. § 541.051. It is well established in our jurisprudence that a landowner has a duty to use reasonable care for the safety of all entrants upon the premises. Louis v. Louis, 636 N.W.2d 314, 318 (Minn.2001); Pietila v. Congdon, 362 N.W.2d 328, 332-33 (Minn.1985); Peterson v. Balach, 294 Minn. 161, 174, 199 N.W.2d 639, 647 (1972). The landowner’s duty of reasonable care is modified according to the expected use of the land, and the entrant also has a duty of reasonable care, which varies according to the circumstances under which he enters the land. Peterson, 294 Minn, at 174, 199 N.W.2d at 647. However, the landowner’s duty of reasonable care includes an ongoing duty to inspect and maintain property to ensure entrants on the landowner’s land are not exposed to unreasonable risks of harm. Pietila, 362 N.W.2d at 332-33; Conover v. Northern States Power Co., 313 N.W.2d 397, 401 (Minn.1981) (owner has duty to inspect, warn). If dangerous conditions are discoverable through reasonable efforts, the landowner must either repair the conditions or provide invited entrants with adequate warnings. See Bonniwell v. St. Paul Union Stockyards Co., 271 Minn. 233, 238, 135 N.W.2d 499, 502 (1965); Restatement (Second) of Torts § 343 cmt. d (1965) (“[An entrant] is entitled to expect that the possessor will take reasonable care to ascertain the actual condition of the premises and, having discovered it, either to make it reasonably safe by repair or to give warning of the actual condition and the risk involved therein.”). If a reasonable inspection does not reveal a dangerous condition, such that the landowner has neither actual nor constructive knowledge of it, under the theory of negligence the landowner is not liable for any physical injury caused to invited entrants by the dangerous condition. See Hanson v. Christensen, 275 Minn. 204, 212, 145 N.W.2d 868, 873-74 (1966).

The common-law duty to inspect, repair, and warn is not absolute. This court has adopted Restatement (See-ond) of Torts § 343A, subsection (1), which states: “A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness.” Restatement (Second) of Torts § 343A(1) (1965); Baber v. Dill, 531 N.W.2d 493, 495-96 (Minn.1995) (citing Peterson v. W.T. Rawleigh Co., 274 Minn. 495, 496-97, 144 N.W.2d 555, 557-58 (1966) (expressly approving Restatement (Second) of Torts § 343A)). Generally, whether a condition presents a known or obvious danger is a question of fact. See, e.g., Louis, 636 N.W.2d at 321-22 (holding that summary judgment was not appropriate because whether the danger posed by a swimming pool was known or obvious was a fact question). Whether the possessor could anticipate the danger is also a fact question. See Adee v. Evanson, 281 N.W.2d 177 (Minn.1979) (granting a new trial on the issue of liability where the original jury instructions omitted language imposing liability on the landowner if harm could be anticipated despite obviousness of danger). Under common law, then, several questions of fact would preclude summary judgment in the instant case.

The county and Shoreland, as owners of the land, had an ongoing duty under common law to use reasonable care for the safety of entrants on their land, including the duty to inspect their premises for dangerous conditions and to repair them or warn entrants about them. The statute of repose does not bar claims that this duty has been breached, because under the plain language of Minn.Stat. § 541.051, subd. 1(e), owners or other persons in possession retain their ordinary landowner liability for negligent maintenance, operation, and inspection of real property improvements. We hold that the district court erred in granting summary judgment in favor of the county and Shoreland based on its conclusion that Olmanson’s claim was barred by the statute of repose.

The county and Shoreland argue that because they inspected and maintained the culvert in a manner adequate for its use as a golf cart tunnel, they cannot be held liable for negligent inspection or maintenance caused by an unintended use. We agree with this basic premise but do not conclude as a matter of law that the use of the land for a snowmobile trail was an “unintended use.” Rather, this is a fact question to be left for determination by the fact finder.

II.

The county and Shoreland assert that if Minn.Stat. § 541.051 does not protect them, they are effectively being denied equal protection of the law because the benefit of the statute is given to persons who construct or design improvements to real estate, but denied to owners. They argue that we concluded that an earlier version of the statute of repose was unconstitutional for this very reason; i.e., that the statute time-barred certain claims against construction professionals while allowing those same claims to go forward against owners. We begin our analysis of this constitutional argument with a brief history of the statute of repose and this court’s decisions with respect to the statute.

The Minnesota Legislature enacted section 541.051 in 1965. Act of May 21, 1965, ch. 564, § 1, 1965 Minn. Laws 803. As originally enacted, the statute barred suits against any person involved with the design, planning, supervision, or observation of construction, or performing the construction of a real property improvement (hereafter construction professionals) after 15 years. It made no reference to suppliers of materials, and it explicitly allowed the exception for owners of real property improvements: “This [section] shall not be applied in favor of any person in actual possession and control as owner, tenant, or otherwise * * * at the time the defective and unsafe conditions of such improvement constitutes the proximate cause of the injury * * *.” Id.

We first examined the statute in Kittson County v. Wells, Denbrook & Associates, Inc., 308 Minn. 237, 241 N.W.2d 799 (1976). At that time, this court concluded that its enactment was apparently a legislative reaction to the erosion of the privity of contract doctrine, which threatened to greatly expand the liability of construction professionals. Id. at 241, 241 N.W.2d at 801-02. The statute limited the liability of these construction professionals by establishing an outer time limit beyond which they could not be held liable for design and construction defects. Id. at 242, 241 N.W.2d at 802. The legislature thus granted broad protection to construction professionals not available to owners of real property improvements.

In 1977, we took up the constitutionality of excluding owners and materials suppliers from the class protected by the statute. Pacific Indem. Co. v. Thompson-Yaeger, Inc., 260 N.W.2d 548, 555 (Minn.1977). At the time Pacific Indemnity was decided, the statute of repose protected construction professionals but allowed suit against property owners. In Pacific Indemnity, a fire caused by a negligently-installed furnace destroyed part of a shopping mall. Pacific Indem. Co., 260 N.W.2d at 551-52. At trial, the jury found the furnace installer 80 percent negligent, the store tenant 10 percent negligent, and the furnace servicing company 10 percent negligent. Id. at 552. The trial court found that the furnace was not a real property improvement, and that therefore section 541.051 was inapplicable. Id. at 553. The servicing company appealed. Id.

This court first held that the furnace was a real property improvement for purposes of section 541.051. Id. at 554. Next, this court noted that the legislature may create separate classes, but “[ljegisla-tive classifications must apply uniformly to all persons who are similarly situated, and the distinctions which separate those who are included within a classification from those who are not must be natural and reasonable, not fanciful and arbitrary.” Id. at 555 (citing Schwartz v. Talmo, 295 Minn. 356, 361, 205 N.W.2d 318, 322 (1973)). Otherwise, the classification fails on equal protection grounds. Noting that a majority of states had upheld the constitutionality of similar statutes on equal protection grounds, this court nonetheless determined that the better reasoned position “is embodied in the decisions which hold such statutes to be unconstitutional because they grant an immunity from suit to a certain class of defendants, without there being a reasonable basis for that classification.” Pacific Indem. Co., 260 N.W.2d at 555.

In 1980, the Minnesota legislature responded to Pacific Indemnity by amending section 541.051 to add property owners and materials suppliers to the class protected by the statute of repose for claims of design and construction defects. Act of April 7, 1980, ch. 518, §§ 2-4, 1980 Minn. Laws 595-96; see Colder v. City of Crystal, 318 N.W.2d 838, 842-43 (Minn.1982). In the same session, the legislature added what is now section 541.051, subdivision 1(c), excepting claims of negligent maintenance, operation, or inspection against the property owner and other persons in possession from the protection of the statute. Act of April 7, 1980, ch. 518, §§ 2-4, 1980 Minn. Laws 595-96. A later amendment shortened the limitation period to its present duration of 10 years.

This brings us to the question at hand. Does the 1980 amendment and our reading of it in Section I create the same classification between construction professionals and owners that was found to be unconstitutional in Pacific Indemnity? We think not. In Pacific Indemnity we held that it was irrational to give statute of repose protection for claims against construction professionals while denying that protection to landowners. We did not conclude that all claims against construction professionals and landowners must be treated identically in order to withstand an equal protection challenge. As discussed above, landowners and other persons in possession of land have historically been liable for claims that arise from their possession in the land; i.e., the obligation to inspect and maintain the premises. Construction professionals who have relinquished control of the land do not have a duty to inspect and maintain the premises. Owners and possessors, not construction professionals, are obligated to inspect and maintain the premises once construction is completed. To permit claims for negligent inspection and maintenance to proceed against those in possession while barring such claims against construction professionals not in possession is a natural and reasonable distinction. The legislature made clear this distinction in plain and unambiguous language. We conclude that owners and possessors are not denied equal protection of the law if we hold them liable for their common-law duties to inspect and maintain their real property improvements.

Affirmed.

ANDERSON, G. BARRY, J„ took no part in the consideration or decision of this case.

PAGE, Justice

(dissenting).

I respectfully disagree with the court’s holding that the plain language of Minn. Stat. § 541.051, subd. 1(c) (2004), preserves a landowner’s or land possessor’s common law liability for improvements to real property after the 10-year time limit set out in subdivision 1(a) has passed.

In Pacific Indemnity Co. v. Thompson-Yaeger, Inc., 260 N.W.2d 548 (Minn.1977), we held the predecessor to the current version of Minn.Stat. § 541.051 unconstitutional because it “violate[d] constitutional provisions which forbid immunity from suit to a limited class of defendants without there being a reasonable basis for such classification.” 260 N.W.2d at 550. The classification in question involved those who “perform[] or furnish[] the design, planning, supervision, or observation of construction or construction of such improvements to real property” and did not include the owner of the real property. Id. at 553. In response to Pacific Indemnity, the legislature amended the statute to include the owner of the real property upon which the improvement was made. See Act of Apr. 7, 1980, ch. 518, §§ 2-4, 1980 Minn. Laws 595-96. As a result, the constitutional infirmity that we identified was eliminated. By today’s decision, the court backtracks and again gives life to the classification we struck down in Pacific Indemnity.

The part of the statute we struck down in Pacific Indemnity read:

This limitation shall not be applied in favor of any person in actual possession and control as owner, tenant, or otherwise, of the improvement at the time the defective and unsafe conditions of such improvement constitutes the proximate cause of the injury for which it is proposed to bring an action.

Pacific Indem. Co., 260 N.W.2d at 553 (quoting Minn.Stat. § 541.051, subd. 1 (1976)).

The pertinent part of the statute that we construe today reads:

(a) Except where fraud is involved, no action by any person in contract, tort, or otherwise to recover damages for any injury to property, real or personal, or for bodily injury or wrongful death, arising out of the defective and unsafe condition of an improvement to real property, * * * shall be brought against any person performing or furnishing the design, planning, supervision, materials, or observation of construction or construction of the improvement to real property or against the owner of the real property more than two years after discovery of the injury or, in the case of an action for contribution or indemnity, accrual of the cause of action, nor, in any event shall such a cause of action accrue more than ten years after substantial completion of the construction. Date of substantial completion shall be determined by the date when construction is sufficiently completed so that the owner or the owner’s representative can occupy or use the improvement for the intended purpose.
⅜ t ⅜ ⅜
(c) Nothing in this section shall apply to actions for damages resulting from negligence in the maintenance, operation or inspection of the real property improvement against the owner or other person in possession.

Minn.Stat. § 541.051, subd. 1(a), (c) (2004) (emphasis added).

When we construe statutes:
The object of all interpretation and construction of laws is to ascertain and effectuate the intention of the legislature. Every law shall be construed, if possible, to give effect to all its provisions.
When the words of a law in their application to an existing situation are clear and free from all ambiguity, the letter of the law shall not be disregarded under the pretext of pursuing the spirit.
When the words of a law are not explicit, the intention of the legislature may be ascertained by considering, among other matters:
(1) the occasion and necessity for the law;
(2) the circumstances under which it was enacted;
(3) the mischief to be remedied;
(4) the object to be attained;
(5) the former law, if any, including other laws upon the same or similar subjects;
(6) the consequences of a particular interpretation;
(7) the contemporaneous legislative history; and
(8)legislative and administrative interpretations of the statute.

Minn.Stat. § 645.16 (2004).

In ascertaining the intention of the legislature the courts may be guided by the following presumptions:

(3) the legislature does not intend to violate the Constitution of the United States or of this state;
(4) when a court of last resort has construed the language of a law, the legislature in subsequent laws on the same subject matter intends the same construction to be placed upon such language.

Minn.Stat. § 645.17 (2004). We have also said that when construing the statute of repose, we “strive to give effect to the plain meaning of the words of the statute without resort to technical legal constructions of its terms.” Pacific Indem. Co., 260 N.W.2d at 554.

Applying their plain meaning, the words of Minn.Stat. § 541.051 bar claims against any person performing the construction of an improvement to real property or the owner of the improved real property for injuries arising from the “defective and unsafe condition of an improvement to real property” that accrue more than 10 years after the improvement is substantially completed. Minn.Stat. § 541.051, subd. 1(a) (2004) (emphasis added). Because the statute begins to run at the substantial completion of the improvement, the condition triggering the statute is not just any condition of the property, but only those conditions that are both “defective and unsafe” and in existence at the time construction of the improvement is substantially completed.

Subdivision 1(c) -of section 541.051 creates an exception to the 10-year time limit. That exception applies “to actions for damages resulting from negligence in the maintenance, operation or inspection of the real property improvement” by the property’s owner. Put another way, the exception applies to the “maintenance, operation, and inspection of the real property improvement” after completion and not to the “defective and unsafe condition” of the improvement as completed. Reading subdivision 1(c) in conjunction with subdivision 1(a), it is clear that the legislature intended to hold an owner liable only for those changes to the real property improvement that arise from the owner’s negligent actions after the construction of the improvement is completed and not for those conditions already in existence at the time the improvement was substantially completed. Simply put, with respect to the defective and unsafe conditions existing at the substantial completion of construction, owners enjoy the same statutory protection as construction professionals. Applying our rules of statutory construction, any other reading of Minn.Stat. § 541.051, subd. 1(c), would render subdivision 1(a) meaningless, violate our holding in Pacific Indemnity, and render the statutory scheme unconstitutional.

Thus, to the extent that Olmanson’s claim is that his injuries arose out of the defective and unsafe condition of the culvert as constructed, his claim is barred by Minn.Stat. § 541.051, subd. 1(a), because the record before us establishes that the culvert’s alleged defective and unsafe condition was inherent in the culvert’s construction and existed at the time of the culvert’s substantial completion and because the improvement to the real property, the culvert, was substantially completed more than 10 years before Olmanson’s snowmobile accident. I would, therefore, reverse the court of appeals’ decision and reinstate the trial court’s grant of summary judgment in favor of appellants.

      . The parties have not made an issue of the county's legal status as owner with regard to the culvert for purposes of summary judgment. Therefore, because it retains control of the culvert as an easement holder, we treat the county as a property owner in this opinion.

      . As this court has explained, "[a] statute of repose starts the limitation period for bringing an action from the date of [completion of an improvement], unlike a statute of limitations which starts from the date of injury. A typical statute of repose will specify a presumptive number of years after which an action cannot be brought.” Hodder v. Goodyear Tire & Rubber Co., 426 N.W.2d 826, 830 (Minn.1988). Section 541.051 specifies a limitation period barring suit more than 10 years after substantial completion of a real property improvement.

      . The parties disagree as to the entrant status of Olmanson. The county and Shoreland assert that he was a trespasser, while Olmanson claims that since snowmobiles are legally entitled to use roadside ditches, he was a licensee. In the context of summary judgment, we must view the facts in the light most favorable to Olmanson, the party against whom the motion for summary judgment was granted. Lubbers v. Anderson, 539 N.W.2d 398, 401 (Minn.1995). For purposes of this opinion, then, we consider Olmanson a licensee.

      . At the time Pacific Indemnity was decided, 10 states had upheld construction statutes of repose, while five states had struck them down. Pacific Indem., 260 N.W.2d at 555. A 1990 decision by the Supreme Court of Ohio lists 21 states that have upheld construction statutes of repose on equal protection grounds. Sedar v. Knowlton Const. Co., 49 Ohio St.3d 193, 551 N.E.2d 938, 948 (1990). The Sedar court listed five states (other than Minnesota) that have struck down similar statutes on equal protection grounds. Id. at 945 n. 6.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    In re Petition for DISCIPLINARY ACTION AGAINST Samuel M. VAUGHT, a Minnesota Attorney, Registration No. 131519.
    No. A04-1438.
    Supreme Court of Minnesota.
    March 31, 2005.

      Kenneth L. Jorgensen, Director, Cassie Hanson, Asst. Director, Office of Lawyers Professional Responsibility, St. Paul, MN, for petitioner Lawyers Professional Responsibility Board.
   OPINION

PER CURIAM.

Samuel M. Vaught, a licensed Minnesota attorney since 1981, primarily represented various pension and trust funds. This attorney discipline case arose from a July 13, 2004, petition filed by the Director of the Office of Lawyers Professional Responsibility alleging that Vaught violated Minn. R. Prof. Conduct 1.4, 1.15(c), and 8.4(c) and (d) (misappropriation of client funds and false statements); 1.16(d) (failure to promptly return client files); 8.1(a)(3) (noncooperation with the disciplinary proceeding); and Rule 25 of the Rules on Lawyers Professional Responsibility (RLPR) (failure to attend prehearing meeting). The matter is now before us on the admitted allegations of the petition and the recommendation that the appropriate discipline is disbarment. We agree with the Director’s recommendation and order that Vaught be disbarred from the practice of law in Minnesota.

In his written submission and oral argument to this court, Vaught challenges the allegations of the petition. However, Vaught failed to answer the petition for disciplinary action against him and, therefore, the allegations are deemed admitted. Rule 13(b), RLPR. After the Director filed and served a motion for summary relief, Vaught did not file an answer within the specified time, pursuant to Rule 13(a), RLPR. Vaught did not oppose the motion. This court granted the summary relief motion deeming the allegations of the petition admitted.

On January 7, 2002, in a separate disciplinary matter, Vaught was indefinitely suspended from the practice of law for a minimum period of three years. In re Vaught, 637 N.W.2d 570 (Minn.2002). Grounds for suspension included misappropriation of client funds. Id. at 571. At the time of his suspension, Vaught had been representing a number of trust funds (the Trust Funds) for a period of several years. As a consequence of his suspension, Vaught proceeded to conclude his work for the Trust Funds. The new attorney retained by the Trust Funds discovered that between August 26, 1999, and July 16, 2001, Vaught received nearly $50,000 in settlement proceeds on behalf of the Trust Funds, which he appropriated for his own use and benefit. In a “Final Invoice” dated January 8, 2002, Vaught acknowledged receipt of $37,479.23 in settlement proceeds, but he maintained that those funds had represented fees and costs owed to him by the Trust Funds.

The new attorney for the Trust Funds brought this matter to the attention of the Director, alleging misappropriation of funds. On January 16, 2003, the Director wrote to Vaught requesting a written response to the allegations of misappropriation. Vaught failed to respond. The Director wrote twice more requesting a written response to the complaint. Vaught never responded. Consequently, on April 18, 2003, the Director issued charges against Vaught alleging misappropriation of client funds, related false statements, failure to timely return original client files, and noncooperation with the disciplinary proceedings.

The Director also mailed notice to Vaught of a prehearing meeting scheduled for May 20, 2003. Vaught failed to answer the charges, but faxed a letter on May 20, 2003, prior to the meeting, stating that various personal and health-related issues had prevented him from cooperating in the Director’s investigation. At the prehear-ing meeting, Vaught admitted that he had not prepared an answer to the charges, or even reviewed them. The Director continued the meeting to June 10, 2003, to give Vaught time to prepare a response, repeated the request for the information and documents already requested in three separate letters, and requested documentation of Vaught’s medical condition. The Director also requested that Vaught provide an answer to the charges at least seven days before the June 10 meeting.

On May 28, 2003, the Director wrote to Vaught requesting that the time of the June 10, 2003, meeting be changed from 10 a.m. to 1 p.m. Vaught did not respond to this letter, nor did he answer the charges or provide medical documentation. On the morning of June 10, Vaught faxed a letter to the Director stating that he would not be able to attend the meeting scheduled for that day. He wrote in the letter: “[C]ontingent upon being able to agree to a factual stipulation, I would accept disbarment as a consequence of and in resolution of the above-referenced charge. * * * [M]y behavior has been such that I do not disagree disbarment is an appropriate penalty.” In response, the Director sent Vaught a proposed petition for disciplinary action and stipulation for discipline and scheduled a June 17, 2003, meeting, either to execute the stipulation or to hold the prehearing meeting if an agreement as to the facts could not be reached.

Vaught did not appear at the June 17 meeting. The Director wrote to him on June 18, 2003, offering another opportunity to meet on June 26, 2003. Vaught failed to appear. On July 1, 2003, the Director filed a panel bypass motion pursuant to Rule 10(d), RLPR, and a motion for approval to file a petition for disciplinary action. However, the Director withdrew the panel bypass motion on August 7, 2003, upon learning that Vaught had been hospitalized.

Vaught was discharged from the hospital on October 31, 2003. Thereafter, he failed to respond to the Director’s efforts to obtain medical documentation and failed to answer the disciplinary charges or provide any other information. On June 18,

2004, the Director reinstated his motion for disciplinary proceedings and for a panel bypass. The motion was granted by this court on July 7, 2004.

The Director filed a petition for disciplinary action against Vaught on July 13, 2004. Vaught did not answer the petition. On August 31, 2004, the Director filed a motion for summary relief pursuant to Rule 13(b), RLPR. This motion was granted on September 17, 2004, and the matter was set for briefing and oral argument.

On October 18, 2004, months after the time provided for answering the petition had passed, Vaught filed with this court a lengthy letter in lieu of a brief. In his letter Vaught disputed a majority of the factual allegations made by the Director. However, under the RLPR and our case law, when an attorney subject to disciplinary proceedings fails to file an answer within the time provided, the allegations set forth in the petition shall be deemed admitted. See, e.g., In re Cutting, 671 N.W.2d 173, 174 (Minn.2003); In re Crissey, 645 N.W.2d 141, 143 (Minn.2002); Rule 13(b), RLPR. Because Vaught failed to timely answer the petition and the Director’s motion for summary relief had been granted, we deem the Director’s allegations admitted.

Because the Director’s allegations are deemed admitted, the only issue before this court is the appropriate discipline to impose in this case. The purpose of disciplinary sanctions for professional misconduct is not to punish the attorney, but rather “to protect the public, to protect the judicial system, and to deter future misconduct by the disciplined attorney as well as by other attorneys.” In re Oberhauser, 679 N.W.2d 153, 159 (Minn.2004) (citing In re Daffer, 344 N.W.2d 382, 385 (Minn.1984)). We consider four factors in determining the appropriate sanction: (1) the nature of the misconduct; (2) the cumulative weight of the violations of the rules of professional conduct; (3) the harm to the public; and (4) the harm to the legal profession. Id. Disciplinary actions are imposed on a case-by-case basis after considering both aggravating and mitigating circumstances, as well as looking to similar cases for guidance. Id.

The Director recommends disbarment in this case because Vaught has a history of misappropriation of client funds, and the integrity of the legal profession depends on the public’s perception that the legal profession deems an attorney who misappropriates funds to be unfit for the practice of law. The Director also notes that disbarment is the usual discipline for attorney misappropriation of client funds, unless there are substantial mitigating circumstances showing the attorney did not intentionally convert the funds.

When an attorney comes before us on a disciplinary charge for a second time, the general rule is that the discipline to be imposed must be reviewed in light of the earlier misconduct. In re Getty, 452 N.W.2d 694, 698 (Minn.1990). We have imposed more severe sanctions when the current misconduct is similar to misconduct for which the attorney has already been disciplined. In re Cutting, 671 N.W.2d 173, 175 (Minn.2003). Vaught has been disciplined once before for misappropriation of client funds and suspended for a minimum period of three years. In re Vaught, 637 N.W.2d 570, 571 (Minn.2002).

We have generally disbarred attorneys who have misappropriated client funds. See, e.g., In re White, 677 N.W.2d 85 (Minn.2004); In re Keller, 656 N.W.2d 398 (Minn.2003); In re Amundson, 643 N.W.2d 280 (Minn.2002). The only exception is “instances when the attorney presents clear and convincing evidence of substantial mitigating circumstances which show that the attorney did not intentionally convert the funds.” In re LaChapelle, 491 N.W.2d 17, 21 (Minn.1992). Vaught argued in his letter to the court and at oral argument that he did not intentionally convert the funds. However, Vaught’s opportunity for an evidentiary hearing was waived by his failure to answer the charges against him and, in any event, this court does not sit as the fact finder in attorney discipline cases. In re Schmidt, 402 N.W.2d 544, 545 (Minn.1987) (referee or panel is fact finder, but responsibility for determining appropriate discipline rests with this court); see also Rule 14(e), (f), RLPR (referee or panel serves as fact finder in disciplinary actions). Accordingly, based on the record before us, we hold that disbarment is the appropriate discipline.

So ordered.

      . Minn. R. Prof. Conduct 1.4 Communication
      (a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.
      (b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.
      Minn. R. Prof. Conduct 1.15 Safekeeping Property * * * ⅜
      (c) A lawyer shall:
      (1)promptly notify a client or third person of the receipt of the client's or third person's funds, securities, or other properties.
      (2) identify and label securities and properties of a client or third person promptly upon receipt and place them in a safe deposit box or other place of safekeeping as soon as practicable.
      (3) maintain complete records of all funds, securities, and other properties of a client or third person coming into the possession of the lawyer and render appropriate accounts to the client or third person regarding them.
      (4) promptly pay or deliver to the client or third person as requested the funds, securities, or other properties in the possession of the lawyer which the client or third person is entitled to receive.
      Minn. R. Prof. Conduct 8.4 Misconduct It is professional misconduct for a lawyer to: ‘
      (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
      (d) engage in conduct that is prejudicial to the administration of justice!.]
      Minn. R. Prof. Conduct 1.16 Declining or Terminating Representation
      (d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee that has not been earned.
      Minn. R. Prof. Conduct 8.1 Bar Admission and Disciplinary Matters (a) An applicant for admission to the bar, or a lawyer in connection with a bar admission application or in connection with a disciplinary matter, shall not:
      (3) knowingly fail to respond to an admissions or disciplinary authority’s lawfully authorized demand for information by either providing the information sought or making a good faith challenge to the demand.
      Rule 25, RLPR, Required Cooperation (a) Lawyer's duty. It shall be the duty of any lawyer who is the subject of an investigation or proceeding under these Rules to cooperate with the District Committee, the Director, the Director's staff, the Board, or a Panel, by complying with reasonable requests, including requests to:
      (1) Furnish designated papers, documents or tangible objects;
      (2) Furnish in writing a full and complete explanation covering the matter under consideration;
      (3) Appear for conferences and hearings at the times and places designated.

      . Rule 13, RLPR, Answer to Petition for Disciplinary Action
      (a) Filing. Within 20 days after service of the petition, the respondent shall file an original and seven copies of an answer in this Court. The answer may deny or admit any accusations or state any defense, privilege, or matter in mitigation.
      (b) Failure to File. If the respondent fails to file an answer within the time provided or any extension of time this Court may grant, the allegations shall be deemed admitted and this Court may proceed under Rule 15.

      . Rule 10, RLPR, Dispensing with Panel Proceedings * * ⅜ *
      (d) Other Serious Matters. In matters in which there are an attorney's admissions, civil findings, or apparently clear and convincing documentary evidence of an offense of a type for which the Court has suspended or disbarred lawyers in the past, such as misappropriation of funds, repeated non-filing of personal income tax returns, flagrant non-cooperation including failure to attend a pre-hearing meeting, fraud and the like, the Director may either submit the matter to a Panel or upon a motion made with notice to the attorney and approved by the Panel Chair, file the petition under Rule 12.

      . Vaught has also been disciplined for failure to file federal and state income tax returns over a five-year period. In re Vaught, 583 N.W.2d 924 (Minn.1998).


author: TOUSSAINT, Chief Judge.

text:
    STATE of Minnesota, Plaintiff, v. Tasha Daphne MITCHELL, Defendant.
    No. A04-1487.
    Court of Appeals of Minnesota.
    March 29, 2005.

      Mike Hatch, Attorney General, St. Paul, MN; and Amy Klobuehar, Hennepin County Attorney, Judith A. Johnston, Senior Assistant County Attorney, Donna J. Wolfson, Assistant County Attorney, Minneapolis, MN, for plaintiff.
    Leonard Castro, Hennepin County Public Defender, Barbara S. Isaacman, Melissa A. Haley, Mark Vijay, Assistant Public Defenders, Minneapolis, MN, for defendant.
    Considered and decided by TOUSSAINT, Chief Judge; HALBROOKS, Judge; and PORITSKY, 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

TOUSSAINT, Chief Judge.

On a certified question from the district court filed pursuant to Minn. R.Crim. 28.03, the court is asked to resolve this question: May a charge of child neglect or endangerment under Minn.Stat. § 609.378 (2002) serve as the predicate offense for the charge of unintentional second-degree (felony) murder under Minn.Stat. § 609.19, subd. 2(1) (2002)?

FACTS

On August 12, 2003, emergency responders arrived at defendant Tasha Daphne Mitchell’s residence in a Minneapolis women’s shelter in response to Mitchell’s report that her two-month-old son was not breathing. After a paramedic attempted unsuccessfully to revive him at the residence, the baby was transported to the Hennepin County Medical Center (HCMC) and pronounced dead on arrival. Although the baby had no obvious signs of injury, the attending physician noted he looked malnourished. The medical examiner conducted an autopsy immediately.

The police searched Mitchell’s room and discovered a calendar on which Mitchell had made notations. On Thursday, July 24 — the day after the baby turned seven weeks old — Mitchell wrote: “Began fast @ 5:00 p.m.” Thereafter, each date contains a check mark and a running count of the number of days the fast had continued until day 19 of the fast — August 12 — on which Mitchell wrote, “HCMC said [B.M.] dead around or in 12:00 hour.” Police also found several baby bottles filled with water, but no baby food.

In January 2004, the medical examiner verbally announced its conclusion that the baby had died of malnourishment. In February, the state charged Mitchell with unintentional second-degree felony murder under Minn.Stat. § 609.19, subd. 2(1) (2002), the underlying predicate offense being child neglect or endangerment under Minn.Stat. § 609.378 (2002).

In April 2004, the medical examiner issued the written autopsy report attributing the baby’s death to “malnutrition and neglect.” The report stated that the baby weighed less at the time of death than when he was born, and that although there was a small amount of food in his large intestine at the time of death, there was no evidence of food in his stomach or small intestine.

Mitchell moved to challenge probable cause for the felony-murder charge, arguing that neither child neglect nor child endangerment can serve as a predicate felony for felony murder because neither poses a special danger to human life in the abstract, as required by Minnesota law. The district court disagreed as to both neglect and endangerment and denied the motion. The court then stayed its order pending this court’s resolution of the certified question.

ISSUE

May felony child neglect or endangerment properly serve as the predicate offense for the charge of felony murder?

ANALYSIS

The determination of whether a given crime may properly serve as a predicate offense to a felony-murder charge is a question of law, which this court reviews de novo. State v. Anderson, 666 N.W.2d 696, 698 (Minn.2003).

Minnesota’s felony-murder statute, Minn.Stat. § 609.19, subd. 2(1) (2002), provides in relevant part that a person who “causes the death of a human being, without intent to effect the death of any person, while committing or attempting to commit a felony offense,” is guilty of unintentional second-degree (felony) murder. The statute codifies the common law felony-murder rule: “if one intends to do another felony, and undesignedly kills a man, this is also murder.” Anderson, 666 N.W.2d at 698 (quotation omitted). As to the other, or predicate, felonies to which the felony-murder rule may apply, “[i]n Minnesota, prior to 1981, predicate felonies for felony murder were those felonies committed upon or affecting the person whose death was caused.” Id. at 699 (quotation omitted). “[Pjurely property crimes” could therefore not serve as predicate felonies, a category limited to “those felonies that involve some special danger to human life.” Id. (quotation omitted). “In 1981, the legislature amended Minnesota’s felony-murder statute, increasing the severity of the offense from third-degree murder to second-degree murder and deleting the limiting language, ‘a felony upon or affecting the person whose death was caused.’ ” Id. (quoting Act of May 19, 1981, ch. 227, §§ 10, 11, 1981 Minn. Laws 1006, 1010).

The supreme court subsequently interpreted the 1981 statutory amendment to mean that “the felony-murder rule can be used even when the underlying felony is a property offense if that offense, as committed, involves special danger to human life.” State v. Back, 341 N.W.2d 273, 277 (Minn.1983). A proper analysis of whether the underlying felony involves a special danger to life must consider both “the elements of the underlying felony in the abstract [and] the facts of the particular case and the circumstances under which the felony was committed.” State v. Cole, 542 N.W.2d 43, 53 (Minn.1996); see also Anderson, 666 N.W.2d at 701 n. 6 (observing that “Minnesota’s special danger to human life standard is not merely a totality of the circumstances standard but rather a two-part inquiry into the inherent danger of the offense and the danger of the offense as committed”).

Although the supreme court has never relaxed the two-part inquiry, it has repeatedly noted that crimes against persons — by their very elements — more readily pose a special danger to human life than do property crimes. Thus, in Cole, 542 N.W.2d at 53, the court wrote that “assault in the second degree itself forms a proper predicate felony to a felony murder conviction — assault is not a property crime, but a crime against the person.” And in State v. Mitjans, 408 N.W.2d 824, 833-34 (Minn.1987), the court suggested that the special-danger standard only arises in the context of property crimes, writing that “[b]y definition, felony murder involves an unintentional killing resulting from the commission of a crime against the person or from the commission of some other felony that, as committed, involves some special danger to human life” (Emphasis added); see also Back, 341 N.W.2d at 276-77 (observing that “[i]f there is such a thing as a typical felony-murder, it probably is an unintentional killing that occurs in the course of robbery or some other crime against the person ” (emphasis added)).

Here, the state charged Mitchell under Minn.Stat. § 609.378 (2002): Neglect or Endangerment of a Child. Under the statute, a parent is guilty of felony child neglect when she “willfully deprives a child of necessary food, clothing, shelter, health care, or supervision appropriate to the child’s age, when [she] is reasonably able to make the necessary provisions and the deprivation ... results in substantial harm to the child’s physical, mental, or emotional health.” Id., subd. 1(a)(1). A parent is guilty of child endangerment when she “intentionally or recklessly caus[es] or permit[s] a child to be placed in a situation likely to substantially harm the child’s physical, mental, or emotional health or cause the child’s death.” Id., subd. 1(b)(1).

Whether child neglect or endangerment may serve as a predicate to felony murder is a matter of first impression in Minnesota. Mitchell does not argue that the facts of this particular ease and the circumstances under which the felony was committed did not involve a special danger to human life; they demonstrably did.

As to child neglect, the district court observed that

the felony of Child Neglect addresses a child’s most basic needs in order to survive. It can hardly be argued that [any] child, no matter what the age, could survive without the items listed in the statute. One need not be a medical professional to know that deprivation of food or shelter would quickly place a child in physical peril.... In light of the vulnerability of children, the risk posed to them when deprived of nutrition is particularly special because they cannot take up their own cause and seek the care they need.

We agree with this analysis.

Mitchell argues that “the offense [of child neglect] is not inherently dangerous in the abstract [because the statute] does not include reference to death as a possible consequence of parental neglect [and] does not even reference great bodily harm [defined by Minn.Stat. § 609.02, subd. 8 (2002) as creating a ‘high probability of death’] as a possible consequence of parental neglect.” But the supreme court has repeatedly held that offenses, such as burglary or theft, that lack any statutory elements referencing bodily harm — let alone great bodily harm or a high probability of death — may properly serve as predicate offenses for felony murder. See, e.g., Cole, 542 N.W.2d at 52-53 (holding second-degree felony theft (shoplifting), when the commission of the crime involves special danger to human life, is a proper predicate felony for conviction of second-degree felony-murder). As the supreme court has noted, to require that predicate felonies pose a special danger to human life under the circumstances of every conceivable case would “eviscerate the special danger to human life standard.” Anderson, 666 N.W.2d at 701 n. 6.

In a related argument, Mitchell asserts that because an individual could violate the child-neglect statute in ways that do not create a special danger to human life, the statute can never serve as a predicate to felony murder. In support, she relies upon People v. Caffero, 255 Cal.Rptr. 22, 207 Cal.App.3d 678, 682 (1989), and a Minnesota district court case, State v. Williams, No. 02072878, slip. op. at 31-32 (Minn.Dist.Ct. Apr. 5, 2004). But Mitchell cites no controlling authority holding that an offense may only serve as a predicate felony where every imaginable scenario arising under that offense poses a special danger to human life. And the effect of adopting such a requirement would be to frustrate the very purpose of the felony-murder rule.

Mitchell contends that the “substantial harm” referenced in the child-neglect statute does not constitute a special danger to human life, arguing: “If injuries result from parental neglect, those injuries are most likely to be bruising or broken bones. The resulting injuries, if any, are temporary, not life threatening or even permanent.” We are not convinced by Mitchell’s speculative attempt to minimize the longevity or seriousness of broken bones or bruising inflicted upon a child by parental neglect. And she cites no authority for the proposition that a predicate offense to felony murder must contain an element specifically referencing permanent or life-threatening injuries.

Mitchell next argues that child neglect and endangerment cannot serve as predicate felonies because they are designated as Severity Level I offenses under the Minnesota Sentencing Guidelines. Mitchell contends that offense severity level is a predictor of predicate-offense suitability. But we cannot discern — and Mitchell does not indicate — any correlation between the severity levels assigned to offenses in the guidelines and those offenses’ capacity to act as predicates to felony murder. For instance, neither price-fixing nor bringing stolen goods into the State — both Level VI offenses — appears to be a more inherently suitable predicate offense than felony child neglect and endangerment.

Finally, Mitchell argues that the circumstances of this case support a charge of sec.ond-degree manslaughter, a violation of Minn.Stat. § 609.205, subd. 5 (2002). Because Mitchell did not raise this issue before the district court, and because it is beyond the scope of the question certified by that court, we decline to address it here.

We conclude that child neglect does pose a special danger to human life in the abstract, and that the child-neglect charge against Mitchell may properly serve as a predicate to a felony-murder charge. We also conclude that child endangerment, whose elements specifically include the possibility of the endangered child’s death, may serve as a predicate to a felony-murder charge.

DECISION

A charge of child neglect or endangerment under Minn.Stat. § 609.378 (2002) may serve as the predicate offense for the charge of felony murder under Minn.Stat. § 609.19, subd. 2(1) (2002). We answer the certified question in the affirmative.


author: DIETZEN, Judge.

text:
    In re the Marriage of Roger W. SIREK, petitioner, Appellant, v. Carol M. SIREK, Respondent.
    No. A04-1353.
    Court of Appeals of Minnesota.
    March 29, 2005.
    Raphael J. Miller, Gaylord, MN; and Keith Kerfeld, Kafi Cohn Linville, Tewks-bury, Kerfeld, Simmer, Minneapolis, MN, for appellant.
    Dennis P. Moriarity, Shakopee, MN, for respondent.
    Considered and decided by SHUMAKER, Presiding Judge; TOUSSAINT, Chief Judge; and DIETZEN, Judge.
   OPINION

DIETZEN, Judge.

In this dissolution proceeding, appellant challenges the district court’s award of marital real property to respondent. The district court found that appellant disposed of marital assets when he did not contest the cancellation of a contract for deed on the property and imputed the value of the property to appellant under Minn.Stat. § 518.58, subd. la (2002). Because it was an abuse of discretion for the district court to award the property to respondent based on the marital disposition statute, we reverse and remand.

FACTS

Appellant Roger Sirek and respondent Carol Sirek married in December 1983 and began farming three parcels of real property consisting of approximately 125 acres (Farmland) in a cooperative relationship with appellant’s parents. After appellant’s father died, the parties sought to purchase the Farmland from appellant’s mother, Ar-villa Sirek. On March 20, 1990, Arvilla Sirek as vendor, and appellant and respondent as vendees, entered into a contract for deed. As a result of the contract, appellant and respondent each acquired a contract vendee’s interest in the Farmland and Arvilla Sirek retained a life-estate interest in the five acres of property where her residence was located. The price on the contract for deed was $141,000. The Farmland was then worth approximately $180,000 but was offered to the parties at a discount because appellant had been uncompensated for his many years of work on the property.

The parties made regular payments of $1,100 per month on the contract until June 1997. By that time, the parties had suffered a downturn in finances along with strains to their marriage. The marriage was so strained that the parties kept different work hours and barely communicated with each other. In July 1999, appellant drove Arvilla Sirek to an attorney’s office so she could determine her options as vendor of the contract for deed. In October 1999, her attorney personally served a mediation notice on appellant at the farm. After the fourteen-day mediation time expired, the attorney personally served at least one copy of a cancellation notice for the contract for deed on appellant at the farm. The cancellation notice was not drafted in accordance with the statutory requirements, but the attorney supplemented the notice by orally notifying appellant that he had 60 days to reinstate the contract for deed. Appellant did not communicate to respondent that he had received the mediation and cancellation notices but instead placed the documents on the kitchen counter. After a period of days, appellant placed the notices in a cupboard with his bills.

In January 2000, immediately after the time for reinstating the contract for deed expired, the attorney recorded the cancellation and the Farmland — now appraised to be worth $874,055 — reverted to Arvilla Sirek. After the cancellation, appellant continued to farm a portion of the Farmland.

Appellant petitioned to dissolve the marriage in January 2001 (Dissolution litigation). Upon discovering that her interest in the Farmland under the contract for deed had been cancelled, respondent filed suit against appellant and Arvilla Sirek to recover her interest (Farmland litigation). In December 2002, the district court held that respondent’s interest in the Farmland was not legally terminated because of the failure to comply with statutory cancellation procedures. The district court granted respondent the right to reinstate the contract for deed by tendering unpaid principal, accrued interest, and property taxes to Arvilla Sirek. No appeal was filed and the decision in the Farmland litigation is final.

Upon conclusion of the Farmland litigation, the district court issued a judgment in the Dissolution litigation that found the Farmland was non-marital property belonging to respondent, subject to Arvilla Sirek’s life estate, the contract for deed, and other mortgages. Appellant challenged the judgment and we reversed, concluding that the district court erred in determining that the Farmland was non-marital property and in basing the property division on appellant’s marital misconduct. Sirek v. Sirek, No. A03-394, 2004 WL 61126 (Minn.App. Jan. 13, 2004). We remanded the Dissolution litigation to the district court to divide the marital property without regard to marital misconduct.

In May 2004, the district court issued a supplemental judgment in the Dissolution litigation, again awarding respondent the Farmland subject to Arvilla Sirek’s life estate and the contract for deed. The district court imputed the value of the Farmland to appellant, reasoning that appellant had disposed of marital assets when he allowed the cancellation of the contract for deed to proceed without protest. The district court concluded that awarding the parties’ marital interests in the Farmland to respondent and imputing its value to appellant was warranted under Minn.Stat. § 518.58, subd. la. The practical effect of the district court’s order was to award the majority of the marital estate, i.e. the Farmland, to respondent, and then to divide the remainder of the estate “in a fair, reasonable and equitable” manner. Appellant now challenges the district court’s supplemental judgment.

ISSUE

Did the district court abuse its discretion when it awarded all of the parties’ interests in the Farmland to respondent under Minn.Stat. § 518.58, subd. la?

ANALYSIS

District courts have broad discretion over the division of marital property and appellate courts will not alter a district court’s property division absent a clear abuse of discretion or an erroneous application of the law. Chamberlain v. Chamberlain, 615 N.W.2d 405, 412 (Minn.App.2000), review denied (Minn. Oct. 25, 2000); Ebnet v. Ebnet, 347 N.W.2d 840, 842 (Minn.App.1984). Appellate courts “will affirm the trial court’s division of property if it had an acceptable basis in fact and principle even though [the appellate court] might have taken a different approach.” Antone v. Antone, 645 N.W.2d 96, 100 (Minn.2002). “We defer to the trial court’s findings of fact and will not set them aside unless they are clearly erroneous.” Id.

The district court “shall make a just and equitable division of the marital property of the parties without regard to marital misconduct, after making findings regarding the division of the property.” Minn. Stat. § 518.58, subd. 1 (2002). When dividing marital property, the district court may consider many factors, such as the length of the marriage, sources of income, and the contribution of each party in the preservation of the marital property. Id. “It shall be conclusively presumed that each spouse made a substantial contribution to the acquisition of income and property while they were living together as husband and wife.” Id. The district court must value marital property upon division of the marital estate, and, if there is a substantial change in the value of an asset between the original valuation and the final distribution, “the court- may adjust the valuation of that asset as necessary to effect an equitable distribution.” Id.

If a party to a dissolution proceeding disposes of, transfers, encumbers, or otherwise conceals a portion of the marital estate, “the court shall compensate the other party by placing both parties in the same position that they would have been in had the transfer, encumbrance, concealment, or disposal not occurred.” Minn. Stat. § 518.58, subd. la. The district court “may impute the entire value of an asset and a fair return on the asset to the party who transferred, encumbered, concealed, or disposed of it.” Id.

Here, the district court applied Minn.Stat. § 518.58, subd. la, because it found that appellant disposed of marital assets by not informing respondent or contesting the cancellation of the contract for deed. But that determination is not applicable because the district court in the Farmland litigation determined that respondent’s interest in the Farmland had not been legally terminated. Consequently, the Farmland was part of the marital estate at the time of the Dissolution litigation. Because the Farmland was part of the marital estate, we conclude that Minn. Stat. § 518.58, subd. la, the disposition provision, does not apply to the property division.

An examination of subdivision la supports this result. According to the provision, when a party disposes of marital assets, the other party shall be compensated for that disposition, potentially by imputing assets to the disposing party. See Carrick v. Carrick, 560 N.W.2d 407, 413 (Minn.App.1997) (concluding that provision is applicable when spouse spent monies from two certificates of deposit and the parties’ joint checking account in Las Vegas). But the statute was not meant to provide a financial windfall to the innocent party. Here, the district court imputed the full value of the Farmland, appraised at $374,055 and constituting the overwhelming majority of the marital estate, to appellant. Imputing the value of the Farmland to appellant and transferring his interest in the contract for deed to respondent results in a financial windfall: She received an equitable division of the remainder of the marital estate and the parties’ ownership interests in the Farmland while appellant merely received his share of the reduced size of the marital estate. When a disposed asset returns to the marital estate, it is duplicative to impute the asset’s value to the offending party, because imputation is only a remedy to put the parties in the same position they would have been in had the disposition not occurred. The disposition provision of the statute was thus intended to provide a method of accounting that would facilitate a fair and equitable division of the property when an asset was no longer part of the marital estate.

Respondent argues that our conclusion allows parties contemplating a dissolution proceeding to freely dispose of marital property knowing they will suffer no consequence and will subsequently be eligible for an equitable division of the marital estate. But here, we are presented with the unusual situation where the marital property disposed of by one party was returned to the marital estate before the district court equitably divided the property. We simply conclude that when marital property is disposed of prior to or during a dissolution proceeding, but redounds to the marital estate before the division of that estate, Minn.Stat. §" 518.58, subd. la, does not apply. We note that, under MinmStat. § 518.58, subd. 1, district courts have wide discretion to divide marital property; that discretion may still be used to protect “innocent” spouses.

Appellant encourages us to formulate an equitable division of marital property, but “[w]e will not determine in the first instance whether [appellant] should receive any portion of the marital interest in the three parcels.” Sirek, A03-394, 2004 WL 61126 at * 5. On remand, the district court may consider all of the factors listed in Minn.Stat. § 518.58, subd. 1, including (1) the amount respondent expended — which included more than $44,000 in attorney fees — to bring the Farmland back into the marital estate; (2) the change in value of the contract for deed, which has accrued more than $30,000 in interest since its original cancellation in January 2000; and (3) the change in value of the Farmland between the original appraisal and the final distribution. The district court may not divide the property on the basis of marital misconduct, see id., but it may consider factors such as appellant’s contribution to the preservation of the Farmland. See Stassen v. Stassen, 351 N.W.2d 20, 24 (Minn.App.1984) (stating that a court may not base property division upon a finding of fault, which “includes a finding that one spouse was a habitual consumer of alcoholic beverages”); see also Minn.Stat. § 518.58, subd. 1 (“The court shall also consider the contribution of each [party] in the acquisition, preservation, depreciation or appreciation in the amount or value of the marital property[.]”). Finally, while the district court must make a just and equitable division of the marital property, “[a]n equitable division of marital property is not necessarily an equal division.” Crosby v. Crosby, 587 N.W.2d 292, 297 (Minn.App.1998), review denied (Minn. Feb. 18, 1999).

DECISION

Because the disposed marital assets returned to the marital estate during the pendency of the Dissolution litigation, the district court abused its discretion by awarding the assets to respondent pursuant to Minn.Stat. § 518.58, subd. 1a (2002). We therefore reverse and remand for a division of the marital estate pursuant to Minn.Stat. § 518.58, subd. 1 (2002).

Reversed and remanded.

      . The appraisal figure was referenced in the district court’s findings of fact in its December 2002 order. Findings from the December 2002 order were judicially noticed in the district court’s February 2003 order that divided the parties' property. In its May 2004 order, which is the order under appeal, the district court attached "full force and effect” to findings in its February 2003 order. Therefore, the original appraisal figure remains in effect in this proceeding.


author: KAPSNER, Justice.

text:
    2005 ND 59
    STATE of North Dakota, Plaintiff and Appellee v. Randy NELSON, Defendant and Appellant.
    No. 20040284.
    Supreme Court of North Dakota.
    March 23, 2005.

      James M. Vukelic (on brief), Assistant State’s Attorney, Bismarck, N.D., for plaintiff and appellee.
    Todd A. Schwarz (on brief), Bismarck, N.D., for defendant and appellant.
   KAPSNER, Justice.

[¶ 1] Randy Nelson appealed ’from a judgment of conviction, upon jury verdict, for manufacture of methamphetamine, a class A felony; possession of methamphetamine, a class C felony; possession of methamphetamine paraphernalia, a class C felony; and fleeing from a law enforcement officer, a class B misdemeanor. On appeal, Nelson asserts the trial court erred in denying his motion to suppress. We hold there was not probable cause to support the warrant to search Nelson’s home, and we reverse Nelson’s conviction and remand for entry of an order granting the motion to suppress.

I

[¶ 2] A warrant was issued to search Nelson’s home for contraband and drug paraphernalia, based upon an affidavit of Special Agent Todd DeBoer of the Bureau of Criminal Investigation. As a result of the search, law enforcement officers found drugs and drug paraphernalia ultimately resulting in Nelson’s conviction on the drug-related charges brought against him. On appeal, Nelson asserts DeBoer’s affidavit in support of the request for the search warrant contained false and inaccurate information which, if eliminated from the affidavit, would leave inadequate factual allegations to support a finding of probable cause for issuance of the search warrant. Nelson asserts the evidence obtained as a result of the search warrant should be suppressed and his conviction on the drug-related charges reversed.

II

[¶ 3] The Fourth Amendment of the United States Constitution, made applicable to the states by the Fourteenth Amendment, and Art. I, § 8 of the North Dakota Constitution require searches and seizures to be reasonable and warrants to be issued only upon a showing of probable cause. State v. Ballweg, 2003 ND 153, ¶ 11, 670 N.W.2d 490. The existence of probable cause to issue a search warrant is a question of law. Id. Probable cause to search exists “ ‘if the facts and circumstances relied on by the magistrate would warrant a person of reasonable caution to believe the contraband or evidence sought probably will be found in the place to be searched.’ ” State v. Corum, 2003 ND 89, ¶ 22, 663 N.W.2d 151 (quoting State v. Guthmiller, 2002 ND 116, ¶¶ 10-11, 646 N.W.2d 724). Probable cause to search does not require the same standard of proof necessary to establish guilt at a trial; rather, probable cause to search exists if it is established that certain identifiable objects are probably connected with criminal activity and are probably to be found at the present time at an identifiable place. State v. Damron, 1998 ND 71, ¶ 6, 575 N.W.2d 912. All of the information presented to establish probable cause should be taken together, not analyzed in a piecemeal fashion, and the magistrate is to make a practical commonsense decision whether probable cause exists to search that particular place. Id.

[¶ 4] When the defendant alleges false or misleading statements have been made in the application for a search warrant, we address the issue under the standard set forth by the United States Supreme Court in Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978):

[Wjhere the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant’s request. In the event that at that hearing the allegation of perjury or reckless disregard is established by the defendant by a preponderance of the evidence, and, with the affidavit’s false material set to one side, the affidavit’s remaining content is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit.

Under Franks, if the defendant makes a substantial preliminary showing to justify an evidentiary hearing, the defendant has the burden at that hearing to prove, by a preponderance of the evidence, false statements in the warrant affidavit were made intentionally or with reckless disregard for the truth. State v. Schmitt, 2001 ND 57, ¶ 11, 623 N.W.2d 409. A false statement under Franks is one that misleads the neutral and detached magistrate into believing the stated facts exist, and those facts in turn affect the magistrate’s evaluation of whether there is probable cause. State v. Duchene, 2001 ND 66, ¶ 8, 624 N.W.2d 668. The determination whether false statements in a warrant affidavit were made intentionally or with reckless disregard for the truth is a finding of fact reviewed under the clearly erroneous standard. Schmitt, 2001 ND 57, ¶ 11, 623 N.W.2d 409. A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if there is no evidence to support it, or if, although there is some evidence to support it, on the entire evidence, we are left with a definite and firm conviction a mistake has been made. Id. at ¶ 12.

Ill

[¶ 5] On appeal, Nelson asserts there were numerous false or misleading statements in Special Agent DeBoer’s affidavit in support of the request for a search warrant which, if set aside, would leave inadequate factual allegations to support a finding of probable cause for issuance of the search warrant.

A

[¶ 6] DeBoer’s affidavit states “a reliable informant provided Elgin Police Chief, Roger Riedlinger with” information about Randy and Monte Nelson carrying marijuana plants into Monte Nelson’s residence. Nelson asserts the affidavjtx-does not identify the informants or show how the information is reliable. A confidential informant is known to the police officer, but his or her identity is concealed from the magistrate. State v. Roth, 2004 ND 23, ¶ 11, 674 N.W.2d 495. A higher degree of reliability attaches to a confidential informant than to an anonymous informant. Id. at ¶ 13. Nevertheless, the trial court indicated in its order following the suppression hearing that it did not rely on this information in issuing the search warrant, stating “the fact that these items were brought into the defendant’s brother’s house does not make it probable that something illegal would be found at the defendant’s house.”

B

[¶ 7] In his affidavit, DeBoer states a concerned citizen, known to Sheriff Steven Bay, advised the sheriff he had noticed a lot of suspicious activity in the outbuildings and grain building located at Randy Nelson’s residence. On appeal, Nelson objects that the affidavit failed to explain what was the suspicious activity from which one could infer a possible connection of criminal activity by Randy Nelson. In his order following the suppression hearing, the judge indicated he afforded no weight to this information in issuing the search warrant:

A “concerned citizen” noticed “suspicious activity” near the outbuildings on the defendant’s property. No information is provided as to the reliability of the “concerned citizen,” nor is there any elaboration on why the “suspicious activity” is suspicious, except that it occurred late at night and early in the morning. Without more detail, this information adds nothing.

C

[¶ 8] DeBoer’s affidavit states on numerous occasions Randy and Monte Nelson purchased substantial quantities of pseudoephedrine, lithium batteries, heat lamps, and light bulbs. The affidavit states that on April 8, 2003, Randy purchased 20 boxes of pseudoephedrine from a business in Elgin, and Monte purchased 25 boxes of pseudoephedrine from the same business; that on April 22, 2003, Randy purchased two packs of lithium batteries from a business in Carson; that on May 2, 2003, Randy purchased seven to eight lithium battery packs at stores in Carson and New Leipzig; and that on May 10, 2003 Randy purchased two boxes of pseudoephedrine from a business in Elgin.

[¶ 9] At the suppression hearing Charles Oien, the owner of the Economy Drug Store in Elgin, testified that altogether Randy purchased between 20 and 25 boxes of pseudoephedrine. Although he was unable to specifically pinpoint each date of purchase, he testified Randy and Monte Nelson purchased substantial quantities of pseudoephedrine during the winter and spring of 2003. Although this evidence shows some details of DeBoer’s affidavit may have been inaccurate, it falls short of demonstrating the allegations in DeBoer’s affidavit about the dates of pseu-doephedrine purchases were intentionally false or issued in reckless disregard of the truth.

[¶ 10] The trial court found these purchase activities very relevant to establishing probable cause to justify issuance of the search warrant:

The Court is left with whether purchases of large quantities of pseu-doephedrine, lithium batteries, and heat lamps and light bulbs is enough to provide probable cause for the issuance of the warrant. The Court finds that the purchase of the quantity and combination of the items is enough to provide probable cause to search for evidence of the manufacture of methamphetamine. The officer’s experience with those items tells him that the items will probably be used to make methamphetamine.

[¶ 11] In the affidavit, DeBoer states that, in his experience as a law officer since 1993, with seven years as an employee of the North Dakota Bureau of Criminal Investigation, lithium batteries, pseu-doephedrine, anhydrous ammonia, heat lamps, and light bulbs are all used in the manufacture of methamphetamine. See State v. Corum, 2003 ND 89, ¶4, 663 N.W.2d 151. The suppression hearing testimony demonstrates DeBoer had a substantial basis for the affidavit allegations that Randy and Monte Nelson had purchased items likely to be used to manufacture methamphetamine.

D

[¶ 12] DeBoer’s affidavit stated a taped recording of two individuals stealing anhydrous ammonia from a tank in Hettinger County on April 28, 2003, showed the suspects used a red Geo Metro vehicle and law officers identified Randy Nelson as the driver of the vehicle and his brother, Monte Nelson, as the passenger in the vehicle. Randy Nelson asserts that was a false statement, because the officers had not identified him as the driver of the vehicle.

[¶ 13] Roger Riedlinger, the Elgin Chief of Police, testified at the suppression hearing that he viewed the tape of the anhydrous ammonia theft and was able to identify Monte Nelson as the passenger in the Geo Metro, which he believed was owned by Randy Nelson. He testified he was unable to identify Randy in the taped video as the driver, but he believed Randy was probably driving the vehicle, because it was Randy’s vehicle and during the past two years the only person the officer had ever seen driving that car was Randy. Steven Bay, the Grant County Sheriff, also testified at the suppression hearing that Randy Nelson had not been identified in the suspect tape as the driver of the red Geo Metro. However, he also testified that at the time the warrant was issued he believed the vehicle was owned by Randy or his wife, Joyce Nelson, or both, and that Randy was likely the driver of the vehicle, where his brother was positively identified as the passenger. Todd DeBoer also testified at the suppression hearing. He said his field notes in investigating these crimes indicated Chief Deputy Darwin Roth had identified Monte Nelson as the passenger in the vehicle and had also identified Randy Nelson as the driver of the vehicle.

[¶ 14] The trial court, in its order denying the motion to suppress, found De-Boer’s statement that Randy Nelson had been identified as the driver of the vehicle was not accurate:

[S]everal law enforcement witnesses testified as to their knowledge that the car was owned by the defendant and driven exclusively by the defendant, therefore the witnesses believed the defendant was driving the car on the videotape. First, the officer’s [sic] opinions, while possibly correct, are not objective evidence, they are merely opinions. Second, and more important, the affiant provided none of this information to the judge who issued the warrant.... What is left is an inaccurate statement that the Court relied on in issuing the warrant. This statement must be redacted.

By setting it aside, the trial court impliedly found the affidavit statement, that Randy Nelson had been identified as the driver of the suspect vehicle, was intentionally false or made with reckless disregard for the truth. That finding is not clearly erroneous.

[¶ 15] While the investigating officers were unable to unconditionally identify Randy as the driver of the vehicle, they told Special Agent DeBoer they believed Randy was the driver of the vehicle, because the vehicle was owned by him, they had only seen Randy driving that vehicle in the past, and they were able to positively identify Randy’s brother as the vehicle passenger. The court must take into account inferences and deductions that a trained experienced officer makes. State v. Guthmiller, 2002 ND 116, ¶ 15, 646 N.W.2d 724. However, none of this additional information was provided in the affidavit to support the request for the warrant.

rv

[¶ 16] In denying the motion to suppress, the trial court concluded De-Boer’s affidavit contained sufficient reliable information to support a finding of probable cause that officers would find contraband at the place to be searched. On appeal, we use the totality-of-the-circumstances test to review the sufficiency of the information before the magistrate independent of the court’s decision. State v. Rydberg, 519 N.W.2d 306, 308 (N.D. 1994). The magistrate is to make a practical, commonsense decision whether probable cause exists to search that particular place. State v. Damron, 1998 ND 71, ¶ 6, 575 N.W.2d 912. We generally defer to a magistrate’s determination of probable cause, and will not disturb a magistrate’s conclusion that probable cause exists if there is a substantial basis for the conclusion. Id.

[¶ 17] To establish probable cause for a search, there must be a nexus between the place to be searched and the contraband sought, and circumstantial evidence may be enough to establish the nexus. See State v. Dodson, 2003 ND 187, ¶¶ 11-12, 671 N.W.2d 825. In Dodson, the warrant-seeking affidavit stated that a car being used by Parker, a person suspected of being involved with methamphetamine production, was spotted by police at the following three locations on the same day: first, the car was used to purchase sulfuric acid (which can be used in the production of methamphetamine); second, the car was parked outside a home where drug-making paraphernalia was found in the trash; and third, the car was parked at Dodson’s home. This Court concluded that evidence of criminal activity at the first home Parker visited would not lead a person of reasonable caution to believe that contraband would be found at the second home Parker visited. Id.

[¶ 18] The factual situation presented to the magistrate in this case provides an even weaker nexus between the place to be searched and the contraband sought. Although Randy Nelson’s brother was identified at the scene of a theft of anhydrous ammonia in a red Geo Metro, Randy Nelson was not identified as a suspect at the scene. There was no evidence presented in the affidavit supporting the search warrant that the car in the video was owned by Randy Nelson or that officers had only seen Randy Nelson driving that car in the past. The affidavit states that the license plate on the car seen in the video was not visible. There is no evidence in the affidavit that the license plate number on the car at the residence of Randy Nelson had been checked or that the car belonged to Randy Nelson. The affidavit only notes that a car that looks like the same unidentified car used in the theft was observed at Randy Nelson’s home at a later date.

[¶ 19] If one sets aside those facts in the affidavit which the trial court found to be inaccurate or of no value in establishing probable cause, the affidavit contained the following relevant information to establish probable cause to issue the warrant:

(1) After the date of the anhydrous ammonia theft, a red Geo Metro was observed at Randy Nelson’s residence.
(2) Randy and Monte Nelson purchased considerable quantities of pseu-doephedrine, lithium batteries, heat lamps, and light bulbs and those items are used in the manufacture of methamphetamine.
(8) Both Randy and Monte Nelson have criminal records, and Monte Nelson’s record includes numerous incidents of drug offenses.

The trial court concluded:

The Court is left with whether purchases of large quantities of pseu-doephedrine, lithium batteries, and heat lamps and light bulbs is enough to provide probable cause for the issuance of the warrant. The Court finds that the purchase of the quantity and combination of the items is enough to provide probable cause to search for evidence of the manufacture of methamphetamine.

Although this Court has said that “simultaneous purchase of innocent items can become suspicious under circumstances indicating the items will be used to manufacture drugs,” Dodson, 2003 ND 187, ¶ 17, 671 N.W.2d 825, the information provided in the affidavit must be sufficient to establish probable cause to believe contraband will be found in the place to be searched. Mere suspicion that criminal activity is taking place which may warrant further investigation does not rise to a level of probable cause to search. State v. Thieling, 2000 ND 106, ¶8, 611 N.W.2d 861. Under the circumstances of this case, we conclude the affidavit, after omitting the false and misleading statements in it, does not contain sufficient facts which would warrant a person of reasonable caution to believe contraband would probably be found at Randy Nelson’s residence. The purchase of considerable quantities of pseudoephedrine, lithium batteries, heat lamps, and light bulbs, without more, is simply inadequate to establish a sufficient nexus between the place to be searched, Randy Nelson’s residence, and the contraband sought to be found.

V

[¶ 20] We conclude, under the totality of the circumstances, DeBoer’s affidavit did not contain sufficient reliable information to warrant a person of reasonable caution to believe contraband or other evidence sought would probably be found at Randy Nelson’s residence. The search of Nelson’s home was therefore illegal under the federal and state constitutions, and the evidence seized as a result of the search should have been suppressed. We, therefore, conclude the trial court erred in denying the motion to suppress, and we reverse Nelson’s conviction and remand for entry of an order granting the motion to suppress.

[¶ 21] GERALD W. VANDE WALLE, C.J., and MARY MUEHLEN MARING, J., concur.

I concur in the result

DALE V. SANDSTROM.

[¶ 22] The Honorable WILLIAM A. NEUMANN, a member of the Court when this case was heard, resigned effective March 14, 2005, and did not participate in this decision.