author: J E Lancaster Associate Justice

text:
    Diane H. HEITZ, Respondent, v. PAR 30 RESTAURANT & LOUNGE, INC. and State Fund Mutual Insurance Company, Relators, and Blue Cross/Blue Shield of Minnesota, Intervenor.
    No. C3-00-322.
    Supreme Court of Minnesota.
    May 2, 2000.
    Andrew W. Lynn, Lynn, Scharfenberg & Associates, Minneapolis, for relator.

      Kenneth N. Potts, Wayzata, for respondent.
    Jane McMahon, Blue Cross/Blue Shield, St. Paul, for intervenor.
   ORDER

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that the decision of the Workers’ Compensation Court of Appeals filed February 3, 2000, be, and the same is, affirmed without opinion. See Minn. R. Civ.App. P. 136.01, subd. 1(b).

Employee is awarded $600 in attorney fees.

BY THE COURT:

J E Lancaster Associate Justice


source: Caselaw Access Project

author: GILBERT, Justice. RUSSELL A. ANDERSON, Justice STRINGER, Justice LANCASTER, Justice

license: Public Domain

text:
    Stuart E. GALE and Sandra W. Gale, petitioners, Stringer, J. and Lancaster, J. Relators, v. COUNTY OF HENNEPIN, Respondent.
    No. C5-99-1349.
    Supreme Court of Minnesota.
    May 11, 2000.

      Stuart E. Gale, Bloomington, for appellant.
    Amy Klobuchar, Hennepin County Attorney, Paul R. Jennings, Assistant County Attorney, Minneapolis, for respondent.
   OPINION

GILBERT, Justice.

This matter comes before us on a writ of certiorari from a decision of the Minnesota Tax Court concerning the valuation of a certain parcel of real property in Crystal, Minnesota owned by Petitioners Stuart and Sandra Gale. The Gales petitioned the tax court, challenging a January 2, 1997 assessment of the subject property. The Gales objected to the market value increase from $20,000 for taxes payable in 1997 to $65,000 for taxes payable in 1998 as being greater than the actual market value of the property, incorrectly classifying the property, unequally assessing the property, and as violating Minn.Stat. § 273.11, subd. la (1998).

Both in a motion in limine and at trial, the Gales objected to the admission of a final review appraisal and the testimony of the county’s sole witness, Thomas Scherer, of the Hennepin County Assessor’s office. The Gales argued that the admission of Scherer’s appraisal and testimony was prejudicial because they were not permitted to review the appraisal prior to trial. The tax court denied the Gales’ motion and admitted the appraisal and Scherer’s testimony. Based on Scherer’s valuation, the tax court set the 1997 market value of the property at $134,000. On appeal to this court, the Gales make several arguments, including that the increase in the assessed market value of their property violated Minnesota’s Limited Market Value law (Minn.Stat. § 273.11, subd. l(a)(1998)), that the evidence presented at the hearing was insufficient to support the tax court’s decision and that the tax court abused its discretion in admitting the appraisal. Because we reverse on the final argument, whether the tax court abused its discretion in admitting the appraisal, we do not address the remaining arguments.

In 1962, the Gales purchased a parcel of real estate in Crystal, Minnesota. This parcel encompasses approximately 81,372 square feet with 134.5 feet fronting Douglas Drive and 605 feet fronting 32nd Avenue (approximately 1.868 acres). When the Gales purchased the parcel it had a residential structure on it, which was taken down in 1964. The parcel is currently vacant. In 1996 and 1997, fill dirt was removed from the lot for a road project. Some of the trees on the lot were also removed. The fill dirt was replaced with clay and the lot was graded.

On January 2, 1997, the county assessor placed the parcel’s market value at $65,000, effective for taxes payable in 1998. Approximately eighty percent of the property was classified as Non-Homestead Residential and the remainder as Community Commercial. The valuation of the property was clarified at trial, indicating that prior to 1997 the commercial part of the property was valued at $20,000 and the residential part was assessed as having no value. In 1997, the county assessed the entire lot at $65,000, $30,000 of which was attributed to the residential part of the Gales’ property.

In March 1998, the Gales petitioned the tax court, challenging the 1997 assessment. The county responded to the Gales’ requests for information by claiming that it had no information to provide. Then, 7 days prior to trial, the county informed the Gales that it had prepared a final review appraisal that it would present at trial. When the Gales requested permission to come down to the county offices to review the appraisal, the county attorney stated that he would not permit the Gales to view it until trial. Prior to trial, the Gales brought a motion in limine objecting to the admission of the final review appraisal. The Gales argued that the county had not provided any information regarding the basis of this new appraisal prior to trial. The Gales submitted an affidavit to the court stating that the parties had agreed to an informal information exchange and that they had provided the county relevant valuation information they intended to present at the hearing.

Immediately prior to trial, the tax court heard arguments on the Gales’ motion in limine to exclude the final review appraisal as evidence. The Gales produced letters and, in an affidavit, relayed to the tax court a history of their dealings with the county attorney that indicated that the parties had agreed on an informal discovery process. While the county attorney never explicitly agreed that this was the case, he did not deny it or offer any evidence to the contrary. The tax court ruled from the bench, denying the Gales’ motion. In a subsequent written order and memorandum, the court stated that Minn.Stat. § 278.05, subd. 6 (1998) only required that appraisals of income-producing property be provided prior to trial. Because the Gales’ property was not income producing, the tax court concluded that the county was not required to provide the appraisal to the Gales.

At trial, the Gales presented two witnesses, petitioner Sandra Gale and a building contractor, Brian Zubert. Both witnesses testified to the condition of the property, the removal of fill dirt and grading in 1996 and 1997, and the potential difficulties soil conditions would present to any development. Although Sandra Gale testified that the current estimate to remove certain concrete fill on the property was $29,000, the Gales presented no direct evidence as to the current market value of the property.

The county presented one witness, Thomas Scherer, an assessor with the Hennepin County Assessor’s office. Scherer testified to the market analysis he used to conduct the final review appraisal of the Gales’ property. Based on this analysis, which took into account the $29,000 for concrete fill removal, he determined a current market value for the Gales’ property of between $134,000 and $144,000.

The tax court found the fair market value of the property to be $134,000. The court commented in its supporting memorandum that it did not find the Gales’ witnesses credible and that the testimony of the current market value by the county assessor was uncontroverted.

The Gales ask us to review the tax court determination of the market value of their property. Because property assessment is an inexact and fact dependent determination, we generally defer to the findings of the tax court and will not reverse absent a showing that the findings are clearly erroneous. See Hansen v. County of Hennepin, 527 N.W.2d 89, 93 (Minn.1995). However, we review tax court rulings on the admissibility of evidence for legal error or abuse of discretion. See Marquette Bank Nat’l Ass’n v. County of Hennepin, 589 N.W.2d 301, 307 (Minn.1999). Our review is also guided by the rule that property tax assessments are presumed valid and the burden is on the party challenging the assessment to show that it does not reflect the true market value of the property. See Minn.Stat. § 272.06 (1998).

The Gales argue that the tax court abused its discretion when it denied their motion in limine to exclude Scherer’s review appraisal and related testimony and that they were prejudiced by not being permitted to review the appraisal prior to the trial. The county argues that the tax court properly admitted Scherer’s testimony and that the Gales failed to follow the specific rules of discovery or, alternatively, that the Gales did not file a motion for a new trial and therefore cannot ask this court for relief.

In concluding that the review appraisal was admissible without first being provided to the Gales, the tax court relied on Minn.Stat. § 278.05, subd. 6. However, simply because Minn.Stat. § 278.05, subd. 6 requires the county assessor to furnish an appraisal in one circumstance, it does support the conclusion that in all other circumstances an appraisal is not discoverable. The statutes governing the conduct of tax court trials and our Rules of Civil Procedure concerning discovery indicate otherwise. Minnesota Statutes § 271.06 (1998) governs petitions for the appeal of tax assessments, and in subdivision 7 states that our Rules of Civil Procedure and Evidence will govern tax court trials “where practicable.” The tax court is authorized to adopt by administrative rules, procedures for the conduct of its trials. See id.; see also Minn. R. § 8610.0010-.0150 (1999) (Minnesota Tax Court Rules of Procedure). A review of Minnesota Tax Court Rules of Procedure does not reveal any special rules adopted by the tax court governing discovery or the admission of expert testimony. In this case, the tax court treated Scherer’s testimony as expert testimony. Therefore, our Rules of Civil Procedure concerning discovery of expert testimony provide guidance as to what disclosures were required by the county in this case.

The Minnesota Rules of Civil Procedure provide for pretrial discovery in civil matters. See generally Minn. R. Civ. P. 26. The opinions and basis for expert testimony that a party intends to use at trial are discoverable. See Minn. R. Civ. P. 26.02(d). The statute governing the conduct of tax court trials also makes it clear that the assessor’s records, including market data, are discoverable. See Minn.Stat. § 278.05, subd. 3 (1998).

A variety of sanctions are available to a court to enforce these rules and to prevent prejudice to a- party or the proceeding by the failure of a party to comply with discovery requirements. See generally Minn. R. Civ. P. 37. These sanctions include denying the noncomplying party the ability to introduce the requested information at trial. See Minn. R. Civ. P. 37.02(b)(2).

The objective of our rules of discovery is to encourage the exchange of relevant information by the parties prior to trial and to discourage and prevent unjust surprise and prejudice at trial, especially where the testimony of expert witnesses is concerned. See Shymanski v. Nash, 312 Minn. 304, 307, 251 N.W.2d 854, 856 (Minn.1977). As we have stated, “trial by ambush” fell out of favor in the courts of this state over 50 years'ago. See American Standard Ins. Co. v. Le, 551 N.W.2d 923, 925 n. 3 (Minn.1996). While the statute governing tax court trials only requires that the Rules of Civil Procedure be applied “where practicable,” there is nothing in the record indicating that disclosure of this review appraisal prior to the trial was not practicable.

Further, although formal discovery procedures were not utilized by the parties, the record indicates that there was an informal agreement between the parties to exchange relevant information on the valuation of this property prior to trial. The record shows that the Gales provided information to the county under this agreement. The record also shows that the county attorney did not dispute the existence of this informal agreement. The Gales learned of the existence of the final review appraisal 7 days prior to trial and requested to review this new information. The county refused to furnish the appraisal to the Gales prior to trial. The Gales then immediately brought their motion in limine to exclude the appraisal and a hearing was held prior to trial. The Gales renewed their objection during Scherer’s testimony. The Gales took adequate steps to preserve the record and to provide the tax court timely opportunity to address this issue.

We hold that under these facts the tax court abused its discretion in allowing the county to withhold its review appraisal until trial and then admitting it as evidence. However, this court has stated that it will not reverse an evidentiary ruling of the tax court unless there is also a showing that the ruling materially prejudiced the appealing party. See Marquette Bank, 589 N.W.2d at 307.

The record in this matter demonstrates that the Gales were prejudiced by the admission of this appraisal. The Gales came to trial expecting to challenge a tax appraisal for 1998 of $65,000, up 325% from the previous year’s market value of $20,000. At trial, they were presented with a new market value appraisal of up to $144,000, representing a 720% increase over the base year. The Gales produced no independent evidence of value at trial when the assessment was based on a market value appraisal of $65,000. While it is true that the initial assessment is given a statutory presumption of validity, the final review appraisal presented at trial has no similar presumption. See generally Minn. Stat. § 272.06. The Gales had no prior knowledge of the contents of the appraisal and they had no opportunity to prepare to challenge the new appraisal or to even have their appraiser review its conclusions or methodology. The Gales informed the court that they had an appraiser standing by to inspect the appraisal. While the court expressed sympathy for their concerns, it overruled each objection. The Gales also lost the opportunity to withdraw their petition prior to the trial and accept the assessment of $65,000. See generally Minn.Stat. § 278.05, subd. 1 (1998); In re Southdale Circle Partnership v. County of Hennepin, 424 N.W.2d 536, 538 (Minn.1988). We therefore conclude that the tax court abused its discretion in admitting the final review appraisal into evidence.

Absent this new review appraisal, there is no evidence to support the tax court’s finding of a market value of $134,000 for the Gales’ property. Accordingly, we reverse the decision of the tax court and remand for trial. We specifically reserve for the Gales their right to voluntarily withdraw their petition prior to the rehearing.

Reversed and remanded.

RUSSELL A. ANDERSON, Justice

(dissenting).

I respectfully dissent. A ruling on the admissibility of evidence should not be disturbed unless the tax court committed legal error or abused its discretion. See Marquette Bank National Ass’n v. County of Hennepin, 589 N.W.2d 301, 307 (Minn.1999). In this case the tax court did neither, as there exists compelling support for the tax court ruling. In addition, the majority invades the province of the fact finder by substituting its view of the evidence and credibility of witnesses for that of the tax court.

The legislature has not required the pretrial disclosure of an appraisal of nonin-come-producing property such as that at issue herein. The legislature requires the disclosure, five days before trial, of any appraisal to be presented at trial only for income-producing property. See Minn. Stat. § 278.05, subd. 6(b) (1998).

Lacking statutory support, the majority then resorts to the Rules of Civil Procedure, which allow for discovery of expert testimony. See Minn. R. Civ. P. 26.02(d). The Rules do not support the majority’s holding for two reasons. First, the Gales failed even to invoke the Rules. Mr. Gale, an attorney, acknowledged that he was aware of the right to formally seek discovery and yet from at least October 1998, when he was aware of the possibility of the need for formal discovery, to trial in April 1999, he failed to invoke those procedures. Nor did the Gales move the court to enforce the alleged informal discovery agreement.

Second, the Rules apply in tax court “where practicable.” Minn.Stat. § 271.06, subd. 7 (1998); see also Minn. R. Civ. P. 81.01(a) (explaining that Rules of Civil Procedure apply to tax court proceedings where not inconsistent). The tax court, with its expertise in the particular eviden-tiary and procedural issues that arise in the trial of a tax matter, should be given the first opportunity to determine if the discovery rules are practicable in a tax case. The tax court here did not rule on whether application of the discovery rules for expert witnesses is appropriate in tax court because the Gales failed to invoke the rules.

Because the county’s failure to voluntarily disclose its appraisal prior to trial did not violate any statute or applicable discovery rules, the tax court did not abuse its discretion in denying the Gales’ motion to suppress the testimony on the basis of an alleged failure to disclose.

Despite citing the civil procedure rules at length, the majority relies largely on its own finding of the existence of an agreement for informal discovery. In doing so, the majority usurps the role of the tax court in its determination of the factual issues necessary to the evidentiary ruling. See Nagaraja v. Commissioner of Revenue, 352 N.W.2d 373, 376 (Minn.1984) (stating review of tax court findings of fact is limited). With respect to the existence of an agreement for informal discovery, the majority states that the county attorney never explicitly agreed, denied, or offered any evidence on the existence of such an understanding. In responding to the Gales’ motion, the county attorney in fact stated that the county’s appraisal was completed only a week before trial and that the Gales were never denied access to the county’s files. The county attorney also noted that Mr. Gale had the “mistaken impression” that the county would mail his file to him. Further, the county appraiser testified that the Gales were never denied access to his office or to their file. In light of the appraiser’s testimony and the ambiguous evidence presented by the Gales, the tax court’s order denying the Gales’ motion in limine was supported by the evidence.

As the majority notes, a taxpayer must demonstrate he or she was materially prejudiced by an evidentiary ruling of the tax court. See 'Marquette Bank, 589 N.W.2d at 307. On appeal from a property tax assessment, the taxpayer has the burden of proof. See Anacker v. County of Cottonwood, 302 N.W.2d 342, 345 (Minn.1981). As the majority also acknowledges, the taxpayers in this case presented no direct evidence as to the property’s current market value. Instead, the Gales focused on alleged deficiencies in the county’s valuation, offered no opinion testimony, expert or otherwise, as to the property’s current market value, did not refute testimony that the property had been listed for sale in 1998 for between $250,000 and $300,000, and chose to go forward with the trial after being advised by the court that the court could rely on the county’s assessment or increase the valuation of the property based on evidence presented by the county. See Minn.Stat. § 278.05, subd. 1 (1998). Given their failure to carry the burden of proof on valuation, the Gales cannot claim they were even surprised, much less materially prejudiced by the admission of the county’s evidence. I see no basis on which to substitute our judgment for that of the tax court.

I would affirm.

STRINGER, Justice

(dissenting).

I join in the dissent of Justice RUSSELL A. ANDERSON.

LANCASTER, Justice

(dissenting).

I join in the dissent of Justice RUSSELL A. ANDERSON.

      . The dissent claims that the county allowed the Gales to inspect the file. The tax court did not make any findings on this issue. However, the record demonstrates that prior to the county's final review appraisal, the county informed the Gales that they could review their file with the county, hut that their file was empty. The county did state that the Gales could have reviewed the county's general market data. However, the county never disputed the Gales' assertion that once the final appraisal was produced, the county attorney refused to provide a copy to or allow the Gales to come to the county offices and inspect the appraisal.

      . The dissent comments that the Gales were not prejudiced in this matter because the property is listed for sale at between $250,000 and $300,000. However, such evidence is minimally relevant to question of value. See Marquette Bank, 589 N.W.2d at 304 (defining fair market value as the value the "property would sell for in a sale from one not required to sell to one not required to buy”). The issue is prejudice in the assessed value, as set by the tax court, not the asking price.

      . Minn. R. Civ. P. 26.02(d) provides that a party may obtain discovery of another party’s anticipated expert witnesses and the nature of the witnesses’ expected testimony by serving interrogatories upon that party.


author: PER CURIAM.

text:
    In re Petition for DISCIPLINARY ACTION AGAINST Chester C. GRAHAM, an Attorney at Law of the State of Minnesota.
    No. C4-86-1715.
    Supreme Court of Minnesota.
    May 11, 2000.

      Edward J. Cleary, Director, and Betty M. Shaw, Senior Assistant Director, Office of Lawyers Professional Responsibility, St. Paul, for petitioner.
    David Gronbeck, Minneapolis, for respondent.
   OPINION

PER CURIAM.

Respondent, Chester C. Graham, has been licensed to practice law in Minnesota since October 1983. Since that- time, he has had an extensive disciplinary history. In February 1985, Graham was admonished for incompetence, neglect, and misrepresentation; in October, 1986, he was publicly reprimanded and given two years supervised probation for neglect, failure to communicate with a client, false statements, and failure to cooperate with the disciplinary investigation; in March 1987, while still on probation, Graham received an admonition for failure to cooperate with a disciplinary investigation; and in March 1989, Graham was indefinitely suspended with no right to reinstatement for a minimum of 18 months for neglect, ignoring court orders, retaining unauthorized fees, and failure to cooperate with the disciplinary investigation. In October 1993, Graham was reinstated to the practice of law and placed on indefinite supervised probation. In December 1997, while still on probation from his 1993 reinstatement, Graham received an admonition for improper notarization of a client’s verification of an amended answer. Graham was on CLE restricted status from February 5, 1998 until March 27, 1998, and in August 1999, Graham was admonished for improper fee sharing.

On July 27, 1999, the Director of the Office of Lawyers Professional Responsibility filed a Petition for Revocation of Probation and for Further Disciplinary Action against Graham. The petition was based on the Director’s allegations that Graham misappropriated client funds in the amount of approximately $9,000 from his trust account and an account he opened as Roger Kielmeyer’s agent, charged an unreasonable fee of $9,000 for doing virtually no work, neglected client matters, failed to obey court orders, violated probation by failing to cooperate with his supervising attorneys, failed to cooperate with the disciplinary investigation, failed to maintain adequate trust account books and records, made false certifications with respect to his trust account books and records, and practiced law while on CLE restricted status.

A disciplinary hearing was held before a referee appointed by this court, on October 27, 1999, at which Graham was personally present, participated, and was represented by counsel. In his Findings of Fact, Conclusions of Law and Recommendation for Discipline dated November 22, 1999, the referee agreed with the Director’s allegations and found that Graham’s actions violated Rules 1.15(a) and (c), 1.3, 1.5(a), 3.2, 3.4(c), 5.5, 8.1(a)(3) and 8.4(c) and (d) of the Minnesota Rules of Professional Conduct; Lawyers Professional Responsibility Board Opinion No. 9; Rule 25 of the Rules on Lawyers Professional Responsibility (RLPR); and the October 26, 1993 reinstatement order placing him on indefinite supervised probation. The referee recommended that Graham be disbarred. On December 1, 1999, Graham was temporarily suspended, in accordance with Rule 16(e), RLPR, pending the final outcome of this disciplinary proceeding. By letter dated December 2, 1999, the Director informed Graham of his duty to notify his clients of his suspension pursuant to Rule 26, RLPR. On December 28, 1999, the Director submitted an affidavit of noncompliance, informing the court that Graham has not filed the required affidavits demonstrating Rule 26 compliance.

Pursuant to Rule 14, RLPR, Graham filed a certificate as to transcripts, thereby preserving his right to challenge the referee’s factual findings. See generally In re Harp, 560 N.W.2d 696, 700 (Minn.1997). The court reporter delivered the transcripts on December 21, 1999; but to date, Graham has not filed a brief in this matter nor has he taken any other action to challenge the referee’s findings or conclusions. Furthermore, Graham did not appear at the April 10, 2000, oral argument in this court. We will uphold a referee’s findings and conclusions in attorney disciplinary proceedings unless clearly erroneous. See In re Jontz, 590 N.W.2d 777, 779 (Minn.1999). Because Graham has not presented any argument with respect to the referee’s findings of fact or conclusions of law and because there is nothing else before us suggesting that they are clearly erroneous, we conclude that the referee’s findings and conclusions must be upheld.

As a result, the only issue left for resolution is the appropriate discipline to be imposed. The purpose of attorney discipline is not to punish, but to “guard the administration of justice and to protect the courts, the legal profession and the public.” In re Dovolis, 572 N.W.2d 734, 736 (Minn.1998) (quoting In re Serstock, 316 N.W.2d 559, 561 (Minn.1982)). A referee’s disciplinary recommendation is entitled to great weight, although it is ultimately this court’s responsibility to determine the appropriate discipline. See In re Randall, 562 N.W.2d 679, 683 (Minn.1997). When determining the appropriate discipline for attorney misconduct, we consider the nature of the misconduct, the cumulative weight of the rule violations, the harm to the public, and the harm to the legal profession. See In re Harp, 560 N.W.2d at 700. We also consider any aggravating or mitigating circumstances. See id. Although we examine each case’s factual situation independently, other disciplinary cases provide guidance as to the appropriate discipline for specific misconduct. See In re Randall, 562 N.W.2d at 683. In addition, the attorney’s disciplinary history is relevant. See In re Hartke, 529 N.W.2d 678, 683 (Minn.1995). We have said that we “ ‘expect[ ] a renewed commitment to comprehensive ethical and professional behavior’ after a disciplinary proceeding, and ‘[w]here leniency has been shown once, we are reluctant to do so again.’ ” In re Haugen, 543 N.W.2d 372, 375 (Minn.1996) (quoting In re Isaacs, 451 N.W.2d 209, 212 (Minn.1990)).

“Disbarment is the usual discipline for attorney misappropriation of client funds except in 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 Randall, 562 N.W.2d at 683 (quoting In re LaChapelle, 491 N.W.2d 17, 21 (Minn.1992)). Disbarment is also an appropriate sanction for repeated serious misconduct. See In re Weems, 540 N.W.2d 305, 309 (Minn.1995) (disbarring attorney for violating terms of probation, misappropriation of client funds, noncooperation, and exhibiting a pattern of neglect, noncommunication, and failure to return client files and unearned retainers); see also In re Goldstein, 581 N.W.2d 36, 36 (Minn.1998) (disbarring attorney for misappropriation of client funds, client neglect, failure to pursue or properly handle client matters, unauthorized practice of law, and noncooperation).

In this case, the record establishes that Graham has engaged in repeated serious misconduct, including the misappropriation of client funds. The referee concluded that Graham’s extensive disciplinary history for similar misconduct was a significant aggravating factor; we agree. The fact that the current misconduct occurred while Graham was on probation is also a significant aggravating factor. The referee did not identify any mitigating circumstances and none have been brought to our attention. Based on his current misconduct, it is clear that after Graham’s reinstatement to the practice of law in 1993, he did not have a “renewed commitment to comprehensive ethical and professional behavior.” Therefore, we conclude that disbarment is the only appropriate discipline.

Respondent, Chester C. Graham, is ordered disbarred.

APPENDIX

The referee’s findings of fact, absent references to the record, and conclusions of law in this case are as follows:

Misappropriation and Unreasonable Fee

3. Roger Kielmeyer was convicted of criminal vehicular homicide and sentenced to prison due to a February 1994 alcohol-related motor vehicle accident resulting in the death of a child (Evenson). Roger Kielmeyer is respondent’s cousin.

4. The survivors of the minor child brought a wrongful death action against Roger Kielmeyer, his wife, Marylou Kiel-meyer, and others. The Kielmeyers’ liability carrier retained Gerald M. Linnihan to represent them in the civil matter. Stephen Torvik represented the plaintiffs.

5. On April 4, 1996, Linnihan’s office wrote to Marylou Kielmeyer informing her that the court had set June 17, 1996, as the trial date in the wrongful death matter.

6. On April 8, 1996, respondent wrote to Roger Kielmeyer at the Minnesota Correctional Facility (MCF) at Faribault stating he had interviewed Marylou regarding a possible Chapter 7 bankruptcy petition to protect as many assets as possible in case the wrongful death judgment exceeded their insurance liability limits. Respondent enclosed a retainer agreement for the Kielmeyers’ signature which was reviewed and rejected.

7. Neither respondent nor the Kiel-meyers had spoken with Linnihan about the status of the case or about the possibility of a verdict or settlement in excess of the policy limits.

8. On April 14, 1996, respondent met with Marylou Kielmeyer and obtained her signature on a revised retainer agreement providing for a $9,000 non-refundable fee. Marylou also signed over to respondent her interest in 750 shares of Otter Tail Power Company common stock (Otter Tail stock).

9. On April 15,1996, respondent visited Roger Kielmeyer at the MCF and obtained Kielmeyer’s signature on the revised retainer agreement. Kielmeyer paid the fee by signing over to respondent the Otter Tail stock certificate previously obtained from Marylou.

10. The Kielmeyers retained respondent for representation in the Evenson wrongful death matter, a Chapter 7 bankruptcy petition for Marylou Kielmeyer and pre-bankruptcy and asset protection for Roger and Marylou Kielmeyer.

11. On April 15, 1996, respondent traveled from Faribault, Minnesota to Minneapolis, Minnesota where he cashed in 750 shares of Otter Tail stock with U.S. Clearing Corp.

12. On the evening of April 15, 1996, Marylou Kielmeyer committed suicide.

13. On April 19, 1996, U.S. Clearing Corp. issued a check payable to respondent in the amount of $28,119.49 which respondent personally picked up and deposited the funds into his trust account.

14. On April 22, 1996, respondent withdrew his $9,000 fee from his trust account via a money order withdrawal.

15. On or about April 24, 1996, the Evensons informed Torvik that they did not want to pursue a judgment in excess of the Kielmeyers’ liability limits.

16. On April 24, 1996, respondent disbursed $4,674 of the Kielmeyers’ funds via a money order withdrawal to pay for Marylou Kielmeyer’s funeral expenses.

17. On April 24, 1996, respondent wrote to Roger Kielmeyer stating, “I am handling these financial things for you without charging a fee because you are my cousin. The Marylou thing is another matter as my name is on legal papers as attorney. Also, if a bankruptcy is necessary I will need to charge you the regular rate.”

18. Shortly after April 25, 1996, Linni-han told respondent by telephone that the matter had been settled for the insurance policy limits.

19. Respondent took no action on behalf of the Kielmeyers in the wrongful death action other than writing to Linni-han on April 25, 1996, advising him that the Kielmeyers had retained him for representation in the civil matter to the extent the Kielmeyers’ liability exceeded their policy limits.

20. Respondent did not at any time speak with Stephen Torvik. Respondent’s only communication with Torvik was to mail Torvik a carbon copy of his April 24, 1996, letter to Linnihan.

21. Respondent did not draft, serve or file an answer on behalf of the Kielmeyers and did not respond to, or conduct any, discovery on behalf of the Kielmeyers.

22. Respondent had no prior experience with personal injury or wrongful death cases, including defense of a liability action for damages in excess of the policy limits. He determined the amount of retainer from discussions he had with Lynn Castner, an attorney whom respondent felt had experience on the issue.

23. Respondent’s first and largest nonrefundable retainer was the $9,000 Kiel-meyer retainer. Since his reinstatement in October 1993, respondent’s next largest retainer was about $1,000.

24. Respondent did not file a bankruptcy petition for the Kielmeyers. Respondent did not even open an office file for them.

25. While respondent did discuss with the Kielmeyers the availability of personal bankruptcy to address a possible judgment in excess of their policy limits in the wrongful death matter, respondent performed no services for the Kielmeyers pursuant to their retainer agreement because such an option became unavailable upon the death of Marylou Kielmeyer on the same day the retainer was executed.

26. Respondent did no asset planning on behalf of Roger Kielmeyer. Respondent did not know the extent of Roger Kielmeyer’s assets beyond a belief that Kielmeyer had non-exempt assets consisting of a second automobile and $20,000 to $30,000 in non-exempt stock. Respondent did not have any specific discussion with Roger Kielmeyer concerning Kielmeyer’s assets. Respondent did not know the value of Kielmeyer’s Edward Jones account.

27. On May 14, 1996, respondent wrote to Roger Kielmeyer requesting, among other things, his signature on an agency agreement. Roger signed the agency agreement on May 15,1996.

28. Respondent continued to act as Roger Kielmeyer’s attorney in handling Roger’s financial affairs. Respondent’s assertion that he was not acting as Roger Kielmeyer’s attorney when performing as Kielmeyer’s agent is contradicted by respondent’s letters of April 18, 1996, stating respondent represented Roger Kielmeyer and signed by respondent as Attorney at Law, by the fact that respondent signed in as Kielmeyer’s attorney when visiting Kiel-meyer at the MCF and respondent mailed correspondence regarding the agency relationship to Kielmeyer at the MCF as “legal mail.”

29. On May 9, 1996, respondent made an unauthorized withdrawal from Roger Kielmeyer’s funds in his trust account by a $150 check payable to himself. Respondent indicated on the Roger Kielmeyer trust account client subsidiary ledger that the withdrawal was for attorney fees.

80. Respondent did not inform Kiel-meyer of the May 9, 1996, withdrawal and could not identify what legal services he was being paid for or otherwise account for this withdrawal.

31. On May 14, 1996, respondent withdrew from his trust account $1,157.11 of Kielmeyer funds by a check payable to himself. On the Kielmeyer subsidiary ledger, respondent indicated the check was payable to Sherburne-Wright County for real estate taxes.

32. On May 14, 1996, respondent deposited to his business account the $1,157.11 withdrawn from his trust account. Respondent did not on any subsequent date disburse equivalent funds from his business account to or on behalf of Roger Kielmeyer.

33. Kielmeyer’s 1996 Wright County real estate taxes were paid by Kielmeyer’s mortgage company, First Nationwide Mortgage.

34. Respondent made such withdrawal without Kielmeyer’s permission or consent and did not inform Kielmeyer of the May 14, 1996, withdrawal. Respondent could not account for, or explain, this disbursement.

35. Respondent misappropriated $1,307.11 from trust account funds belonging to Roger Kielmeyer during May 1996.

36. On May 17, 1996, respondent deposited Kielmeyer’s remaining funds ($12,458.28) from his trust account into National City Bank account no. 4811771, entitled Chester C. Graham Agent for Roger F. Kielmeyer (agency account). On June 4, 1996, respondent deposited $1,343.41 from Kielmeyer’s Edward Jones account into the agency account. On June 11, 1996, respondent deposited an additional $7 received from the Internal Revenue Service.

37. On June 5, 1996, respondent wrote to Kielmeyer’s mortgage company, First Nationwide Mortgage, signing the letter as an Attorney at Law, enclosing a copy of the agency agreement and asking them to change the address on the loan to respondent’s address.

38. On June 5, 1996, respondent disbursed from the agency account check no. 103 in the amount of $472.32 payable to First Nationwide Mortgage. Respondent made similar disbursements from the agency account to First Nationwide Mortgage on June 24, 1996, July 5, 1996, July 12, 1996, July 29, 1996, August 8, 1996, August 11, 1996, and September 9, 1996, for a total of $3,500.24.

39. Between June 14, 1996, and August 15, 1996, respondent misappropriated $7,700 from Roger Kielmeyer by issuing ten checks from the agency account payable to himself as follows:

Agency Withdrawal Date Check No. Payee Amount
6/14/96 105 Chester Graham $ 100
7/12/96 109 Chester Graham 500
7/26/96 112 Chester Graham 500
7/29/96 114 Chester Graham 1,000
7/31/96 115 Chester Graham 1,000
8/2/96 116 Chester Graham 500
8/6/96 117 Chester Graham 1,000
8/9/96 111 Chester Graham 100
8/13/96 121 Chester Graham 2,000
8/15/96 123 Chester Graham 1,000
TOTAL: $7,700

40.After withdrawing the above items from the agency account, respondent deposited Kielmeyer’s money into his business account no. 1105337 at National City Bank, Minneapolis, entitled Chester C. Graham, attorney at law. The deposits to respondent’s business account are as follows:

Deposit Date Agency Check No. Payee Amount
7/12/96 109 Chester Graham $ 500
7/26/96 112 Chester Graham 500
7/29/96 114 Chester Graham 1,000
7/31/96 115 Chester Graham 1,000
8/2/96 116 Chester Graham 500
8/6/96 117 Chester Graham 1,000
8/13/96 121 Chester Graham 2,000
8/15/96 123 Chester Graham 1,000
TOTAL: $7,500

41.Respondent did not have Kielmeyer’s authorization or authority to withdraw, borrow or use Kielmeyer’s money in the agency account for his own benefit. Respondent did not inform Roger Kielmeyer that he was withdrawing funds from the agency account for his own purposes. Roger Kielmeyer never ratified or agreed that respondent could borrow or use Kiel-meyer’s money.

42.As a result of respondent’s misappropriations, there were insufficient funds to cover check no. 119 disbursed August 19, 1996, payable to First Nationwide Mortgage for $451.26. The check was returned by the bank for non-sufficient funds (NSF). On August 20, 1996, the National City Bank charged the agency account $21 as a service charge on the NSF check.

43. On August 21, 1996, respondent reimbursed the agency account $600 to restore the account to an end of the month balance of $8.47. On September 9, 1996, respondent reimbursed the agency account $250 to cover a $250 disbursal to First Nationwide Mortgage. On October 16, 1996, respondent reimbursed the agency account $500 in order to cover a $500 disbursal to Roger Kielmeyer dated October 10, 1996, and deposited by Kielmeyer on October 21,1996.

44. By November 30, 1996, the agency account had a $1.38 negative balance. Respondent paid the $1.38 and closed the account on December 3,1996.

45. The closed agency account remained short $6,371 ($7,700 in misappropriation, plus $21 NSF check charge, less $1,350 reimbursement) until Kielmeyer demanded an accounting. On or about May 7, 1997, Kielmeyer revoked what he thought was respondent’s power of attorney and respondent reimbursed Kielmeyer by depositing $7,800 in Kielmeyer’s Edward Jones investment account.

46. On May 9, 1997, Kielmeyer’s new attorney, Brian Huling, sent respondent a letter formally discharging him, requesting an accounting and return of all Kielmeyer’s funds. When respondent did not reply, Huling wrote to respondent again on June 2,1997. On June 4,1997, respondent provided a sketchy accounting but no supporting documentation.

47. On June 19, 1997, Huling wrote respondent asserting that the $9,000 fee paid by the Kielmeyers in 1996 was unreasonable and asking respondent to justify the fee. Respondent did not respond, nor did he provide documentation to support his June 4 accounting.

48. On August 14, 1997, Huling brought a civil suit against respondent on behalf of Roger Kielmeyer to obtain a full accounting.

49. Respondent failed to respond to discovery requests relating to the accounting. On December 17, 1997, the district court issued an order compelling respondent to comply completely with discovery requests and awarding Kielmeyer $480 in attorney fees.

50. Respondent retained counsel who responded to discovery and respondent paid the court-ordered $480 to Kielmeyer’s counsel.

51. Respondent and Kielmeyer settled the civil suit and judgment was entered on Kiehneyer’s behalf for approximately $16,000. Despite having sold part of a farm respondent inherited valued at approximately $350,000, respondent did not voluntarily pay the Kielmeyer judgment. As of October 27, 1999, Kielmeyer, through Huling, continues to garnish monthly contract for deed payments owed to respondent in order to recover the funds owed to Kielmeyer.

Neglect and Failure to Obey Court Orders

52. Patrice M. Lachecki, personal representative for the estate of Delores Kathryn Lachecki, retained respondent to probate the estate on June 9,1994.

53. On May 18, 1995, Houston County District Court wrote to respondent stating that the inventory and appraisement for the Lachecki estate were overdue. Respondent did not respond. The court wrote again on July 18, 1995.

54. On August 22, 1995, respondent forwarded to Patrice Lachecki two copies of the inventory for her review and signature.

55. On August 28, 1995, respondent filed the Lachecki estate inventory.

56. On January 18, 1996, respondent submitted to Patrice Lachecki his statement of services for $1,875.

57. On July 1, 1996, Houston County District Court wrote to respondent inquiring about the status of the Lachecki estate and when respondent anticipated filing the necessary documents to close the estate. Respondent replied on July 16, 1996, stating the estate was due to close and he would submit the necessary documents to close it within a month. Respondent did not do so.

58. On September 9, 1996, the court wrote to respondent inquiring if there was a problem delaying closure. Respondent did not reply.

59. On November 27, 1996, the court wrote to respondent asking him to file the necessary closing documents within three weeks or an order to show cause would be issued.

60. On December 23, 1996, respondent wrote to the court stating the only thing remaining to be done was to file a final accounting for which he needed information from the personal representative. Between December 22, 1996, and March 16, 1997, respondent wrote four letters to Patrice Lachecki requesting the closing statement for the sale of the homestead.

61. On March 14, 1997, the court wrote to respondent asking him to file the necessary documents to close the estate and informing him that if these documents were not received by April 15, 1997, the court would issue an order to show cause.

62. On May 4, 1997, respondent wrote to the court that he had the information and would file the final account after May 16 when he returned from vacation.

63. When respondent had not filed the final account by June 20, 1997, the Houston County District Court issued an order to show cause why respondent should be not be adjudged in contempt of court for failure to provide the documentation to close the Lachecki estate and ordering him to appear personally before the court on July 17,1997. The hearing was later reset to October 9, 1997. Respondent did not appear.

64. On October 10, 1997, the court issued an order finding respondent in contempt of court for his failure to complete the information required by the court. The order sentenced respondent to 90 days in the Houston County jail, payment of a $5,000 fine, and set another order to show cause hearing concerning why respondent should not be required to immediately serve that jail time or pay the fine as indicated.

65. On October 13, 1997, the court issued another order to show cause requiring respondent’s appearance on November 20,1997.

66. On November 16, 1997, respondent submitted to the court his proposed final account for the Lachecki estate.

67. Respondent appeared for the November 20,1997, order to show cause hearing. By order dated November 26, 1997, the court ordered respondent to complete the estate by January 1,1998.

68. During December 1997 respondent contacted Donald H. Lamm, Esq. who prepared the final accounting and the appropriate consents of the heirs. Respondent failed to mail the consents to the heirs for their signatures and did not file the final account.

69. Respondent did not inform Lamm about the November 20, 1997, order to show cause hearing.

70. On January 23, 1998, respondent learned that a warrant for his arrest had been issued to Hennepin County by Houston County District Court. Respondent retained Donald Lamm to represent him regarding the warrant and asked La,mm to assume representation of the personal representative of the Lachecki estate.

71. Donald Lamm signed a substitution of attorney. The court then issued an order to quash the January 7, 1998, warrant.

72. On February 2, 1998, the court issued an order requiring respondent to report his conduct to the Director. Respondent did not self-report until March 27, 1998.

Probation Violations

73. The October 26, 1993, reinstatement order placed respondent on indefinite supervised probation subject to the following conditions:

a. Respondent shall not engage in the solo practice of law until such time as a system for supervising his practice has been established and has been approved by the Director’s Office. Respondent shall be supervised by one or more attorneys experienced in the areas in which respondent proposes to practice. Each supervising attorney shall report to the Director at least monthly during the first two years of respondent’s probation. After two years, the Director shall evaluate the system for supervising respondent’s practice and shall modify the system, as appropriate.

b. Respondent shall abstain from alcohol and mood-altering chemicals and shall continue to attend weekly meetings of Alcoholics Anonymous and Lawyers Concerned for Lawyers. Any instance of lack of abstinence shall constitute sufficient basis for the immediate revocation of respondent’s probation and his suspension from the practice of law.

c. Respondent shall timely file his federal and state tax returns.

d. Respondent shall comply with the terms of his agreement with the Director to repay the costs and disbursements previously ordered by this Court pursuant to Rule 24, RLPR. Respondent shall not be discharged from probation prior to his full payment of these costs.

e. Respondent shall cooperate with the supervising attorneys and with the Director’s Office in the investigation of any complaints of misconduct made against him. In addition, respondent shall provide any authorizations which are needed to verify his compliance with the conditions of this probation.

74. During October 1993, Lynn Cast-jier, Vance Bushay, John Holahan, Donald Lamm, and Charles R. Lloyd consented to supervise respondent in various areas of practice. Tim Grathwol served as respondent’s overall supervisor. During October 1994, Grathwol resigned as respondent’s overall supervisor and Lloyd became respondent’s overall supervisor.

75. During October 1995, Lynn Cast-ner hired respondent as an associate. Respondent’s probation appeared to be proceeding successfully through December 1996. At the recommendation of respondent’s supervisors, respondent’s supervision was decreased and Castner became respondent’s sole supervisor.

76. Respondent did not advise Castner of the letters he had received from the court or the delays he was experiencing in completing work on the Lachecki estate. Castner first learned about problems in the Lachecki estate when sheriffs deputies appeared in his office in January 1998 with a warrant for respondent’s arrest. Respondent did not tell Castner that he had been placed on restricted status by court order for failing to comply with CLE requirements.

77. On April 27, 1998, John M. Koneck signed a consent to supervise respondent’s probation.

78. Respondent did not regularly and timely provide case inventories to Koneck. When Respondent did provide case inventories, it was only after reminder letters and phone calls from Koneck.

79. In his July 13, 1998, supervisor’s report, Koneck identified potential problems with respondent’s representation of the Foss and Swanson estates. Respondent’s work on the Foss and Swanson estate matters had been intermittent at best. Respondent told Koneck that he undertook activity on these files because of client complaints about delays and Koneck’s request for updated file summaries. In September 1998, Koneck recommended that respondent take no new probate matters.

80. Despite persistent encouragement by his supervisor, respondent had not completed work on the Foss or Swanson estates by April 1999 and had not provided case summaries for January or March 1999.

81. On April 5, 1999, Koneck wrote to respondent requesting the overdue case summaries. Koneck requested the summaries by the end of the week. Respondent forwarded incomplete and sloppily prepared case summaries to Koneck on or about April 9, 1999. The case summaries did not include the Foss and Swanson probate matters.

82. Respondent has continued to neglect the Foss and Swanson probate matters. As of October 27, 1999, respondent had not completed work on either matter.

83. In his May 5, 1999, supervisor report Koneck noted numerous practice problems including: (1) respondent was using a cordless analog telephone for client communication in violation of Lawyers Professional Responsibility Board (LPRB) Opinion No. 19; (2) respondent was representing clients in contingent fee matters without written fee agreements in violation of Rule 1.5, MPRC; (3) respondent held approximately $18,000 in his trust account, without discussing the use of a separate interest bearing account with his client and without a written agreement in violation of Rule 1.15, MPRC; and (4) that respondent did not provide case summaries regarding the Foss and Swanson estate matters because respondent had not done any work on those files since their last meeting and did not want to report this to Koneck.

84. On August 18, 1998, the Director requested respondent provide, among other things, his complete trust account records for the period of January 1996 through December 1997 in connection with the investigation of the Kielmeyer matter.

85. Respondent did not provide these trust account records or other requested documents until April 8, 1999, despite the urging of his supervisor and numerous letters and phone calls to respondent’s counsel repeating the request for information.

86. One of the conditions of probation was that respondent abstain from the use of alcohol or other mood altering substances. The testimony of respondent and of the supervisors, Castner and Koneck, was unanimously unequivocal that this condition of probation has been continuously met.

Inadequate Trust Account Books and Records and False Certification

87. The Director’s Office reviewed respondent’s books and records for the period January 1996 through December 1997. During that period respondent did not maintain subsidiary ledgers, did not perform and maintain evidence of monthly reconciliations of his trust account, checkbook balance, subsidiary ledger trial balance and adjusted bank statements. Respondent did not use numbered trust account checks or fully annotate his trust account check register with client name, payee and purpose of all transactions.

88. During 1996 and 1997 respondent did not maintain his trust account check register and subsidiary ledgers contemporaneously with the occurrence of trust account transactions. The trust account records respondent produced for the Director on April 8, 1999, were, at least in part, prepared after the Director requested those records on August 18,1998.

89. For the period from at least August 12, 1997, through December 1997, respondent commingled personal and client funds in the trust account.

90. In 1997 and 1998 respondent falsely certified on his attorney registration cards that he maintained the appropriate trust account books and records.

Unauthorized Practice

91. By order dated February 5, 1998, the Minnesota Supreme Court placed respondent on CLE restricted status for failure to provide proof of attendance at 45 hours of approved continuing legal education prior to June 80,1997.

92. While on CLE restricted status respondent represented clients and/or provided legal services on February 5, 6, 10, 12, 13, 16, 23, 24, 26 and 27, 1998, and March 2, 3, 6, 18, 20, 23, 24, and 26, 1998.

93. Respondent did not inform Joseph Kaminsky regarding his unauthorized practice of law between February 5, 1998, through March 27,1998.

94. By order dated March 27, 1998, the Court restored respondent’s license to unrestricted status.

CONCLUSIONS OF LAW

1. Respondent’s conduct in the Kiel-meyer matter violated this Court’s October 26, 1993, probation order, Rules 1.5(a), 1.15(a) and (c), 3.4(c), and 8.4(c) and (d), MPRC, and LPRB Opinion 9.

2. Respondent’s conduct in failing to diligently pursue the Lacheeki estate and failing to promptly obey the court’s orders violated this Court’s October 26, 1993, probation order and Rules 1.3, 3.2, 3.4(c), and 8.4(d), MPRC.

3. Respondent’s conduct in (1) failing to be candid with his supervisor about the status of his cases or to cooperate with his supervisor by regularly and timely providing case summaries; (2) failing to comply with the Rules of Professional Conduct in the operation of his practice; and (3) failing to cooperate with the Director’s investigation of a complaint by timely providing requested trust account books and records violated this Court’s October 26, 1993, order, and Rules 3.4(c), 8.1(a)(3), 8.4(c) and (d), MRPC, and Rule 25, Rules on Lawyers Professional Responsibility.

4. Respondent’s conduct in failing to maintain appropriate books and records and in falsely certifying to this Court that he maintained such records violated this Court’s October 26,1993, order, Rules 1.15 and 8.4(c), MRPC, and LPRB Opinion 9.

5. Respondent’s unauthorized practice between February 5, 1998, and March 27, 1998, violated Rule 5.5, MRPC, and this Court’s October 26, 1993, probation order.

6. Respondent’s extensive disciplinary history, including prior discipline for repeated neglect of client matters, ignoring court orders, retaining unauthorized client fees, unauthorized practice of law, misrepresentations and failing to cooperate with the Director’s Office, constitutes a significant aggravating factor.


author: LANSING, Judge

text:
    Terry S. KAISER-BAUER, Respondent, v. John C. MULLAN, M.D., et al., Appellants.
    No. C3-99-1396.
    Court of Appeals of Minnesota.
    May 2, 2000.

      Joseph R. Klein, Moss & Barnett, P.A., Minneapolis, for respondent.
    William H. Leary III, Geraghty, O’Loughlin & Kenney, P.A., St. Paul, for appellants.
    Considered and decided by DAVIES, Presiding Judge, LANSING, Judge, and HARTEN, Judge.
   OPINION

LANSING, Judge

Terry Kaiser-Bauer brought a medical-malpractice action against John Mullan, alleging negligence in the performance of carpal-tunnel surgery and the administration of post-operative care. The jury returned a special verdict in Kaiser-Bauer’s favor and awarded her approximately $132,000 in damages. Because the trial judge improperly submitted two of Kaiser-Bauer’s three negligence theories to the jury and the evidence does not conclusively establish that Kaiser-Bauer is entitled to the verdict on the third theory, we reverse the jury’s verdict and remand for a new trial.

FACTS

In September 1995, Terry Kaiser-Bauer’s neurologist referred her to John Mullan, a neurosurgeon, because of progressively worsening symptoms of numbness, tingling, and muscle fatigue in her right hand. After examining Kaiser-Bauer in October 1995, Mullan concluded that she had developed carpal-tunnel syndrome and recommended surgery.

Carpal-tunnel surgery is performed to decompress the median nerve by dividing the transverse carpal ligament. Injury to the median nerve and its accessory nerves, including the recurrent motor branch, is a recognized risk of surgery. Mullan informed Kaiser-Bauer of the risk before performing the surgery on October 13, 1995.

Mullan saw Kaiser-Bauer in his office three times after the surgery. When he last saw her on January 10, 1996, he had learned from Kaiser-Bauer’s physical therapist’s report that Kaiser-Bauer’s abductor pollicis brevis and opponens pollicis, the muscles that move the thumb, were weak. He had also learned that the weakness in the muscles was impairing Kaiser-Bauer’s coordination and her ability to hold a pen, and that Kaiser-Bauer had complained that her “hand and fingers [did not] bend right.” Mullan examined Kaiser-Bauer, found the hand’s range of motion and pinching strength to be normal, and discharged her from care. His discharge notes indicate that Kaiser-Bauer “appeared to be doing quite well” and there was “no need for [a] follow-up visit.”

In February 1996, several weeks after Kaiser-Bauer last saw Mullan, she noticed that her right palm was flat and gray. On her physical therapist’s recommendation, Kaiser-Bauer consulted Jeffrey Groner, a neurosurgeon who specialized in the hand.

Groner first saw Kaiser-Bauer in March 1996. He did some neurological testing and determined that, although the hand’s range of motion was normal, there was a problem with the innervation of the hand. Groner saw Kaiser-Bauer again on April 16 and determined that he could not diagnose Kaiser-Bauer’s condition with certainty based on the physical evidence alone. He therefore referred her to Frank Wei for electrodiagnostic testing, including an electromyogram (EMG).

The EMG results indicated that the recurrent motor branch of the median nerve had been cut. Groner speculated that scar tissue had developed around the nerve after it was cut, but could not be sure. He therefore recommended a second opinion, and Kaiser-Bauer contacted Karen Porth, a neurologist. Porth concluded there was some ongoing compression or irritation of the nerve and recommended exploratory surgery to determine the source.

Groner performed the surgery in July 1996. He found the recurrent motor branch of the median nerve encased in significant scar tissue. After removing the scar tissue, Groner saw that the nerve had been sharply cut. When he looked at the nerve closely, he saw scar tissue between the two severed ends. He also saw that one end of the nerve was twice the diameter of the other end. The presence of sear tissue and the difference in the nerve endings’ sizes suggested the injury to the nerve had occurred “some months beforehand.” A test Groner conducted with a nerve stimulator confirmed that the injury was at least 48 to 72 hours old. Based on these observations, Groner concluded Mul-lan had divided the recurrent motor branch during surgery.

In September 1997, Kaiser-Bauer brought this medical-malpractice action, claiming Mullan had negligently injured the recurrent motor branch of the median nerve during surgery. Kaiser-Bauer asserted three liability theories.

a. The Tourniquet Theory

Kaiser-Bauer’s first liability theory was that Mullan departed from the generally accepted standard of care by failing to use a tourniquet to constrict the flow of blood. At trial, Wayne Thompson, an orthopedic surgeon who served as Kaiser-Bauer’s expert, testified that, although the flow of blood can be constricted with vasoconstric-tors and electrocautery, Mullan departed from generally accepted standards by failing to use a tourniquet. Mullan admitted he did not use a tourniquet, but claimed that neurosurgeons are trained to constrict the flow of blood with vasoconstrictors and electrocautery rather than tourniquets. Scott McPherson, a hand-surgery specialist, confirmed Mullan’s testimony and added that the use of a tourniquet during carpal tunnel surgery is a matter of surgical preference. He also stated that he searched the medical literature and found no articles suggesting that the use of vaso-constrictors and electrocautery in carpal-tunnel surgery is inappropriate or that the use of the tourniquet is safer. On the contrary, the medical literature introduced at trial suggested that vasoconstrictors and electrocautery may be used safely in the performance of carpal tunnel surgery and are preferable to the tourniquet. No witness testified that Mullan’s operative field was bloody, and Kaiser-Bauer presented no nontestimonial evidence to support this theory.

b. The Inspection Theory

Kaiser-Bauer’s second liability theory was that Mullan departed from the accepted standard of care by failing to inspect the recurrent motor branch of the median nerve to determine if it had been cut during surgery. Thompson testified that all carpal-tunnel surgeons, regardless of specialty, are required to inspect the recurrent motor branch before concluding the surgery. According to Thompson, the timely realization that the nerve had been cut would have allowed Mullan to repair the nerve promptly and thereby minimize long-term damage.

Mullan admitted he did not inspect the recurrent motor branch. He testified, however, that neurosurgeons are trained not to locate the motor branch unless there is reason to believe it has been injured. McPherson confirmed Mullan’s testimony and added that looking for the motor branch when there is no reason to believe it has been injured was bad practice. Neither Mullan nor McPherson disputed that the timely realization that the nerve had been cut would have minimized the damage resulting from the transection.

c. Muscle-testing Theory

Kaiser-Bauer’s last liability theory was that Mullan departed from the accepted standard of care by failing either to conduct opponens testing during postoperative care or to conduct it properly. Opponens testing involves the clinical assessment of the function of the oppo-nens pollicis, a thumb muscle. According to Thompson, had Mullan properly conducted opponens testing, he would have discovered that Kaiser-Bauer’s abductor pollicis brevis and opponens polli-cis were weak. Muscle weakness would have necessarily suggested nerve damage and resulted in early repair.

Relying on notes from his last visit with Kaiser-Bauer, Mullan testified that he conducted the test and that Kaiser-Bauer’s range of motion was normal. Groner, who tested Kaiser-Bauer several weeks after Mullan tested her, also found Kaiser-Bauer’s range of motion and thumb function to be “within normal limits” and concluded that “there appeared to be no appreciable impairment.”

At the conclusion of the evidence, Mul-lan moved for a directed verdict, claiming the evidence was insufficient to sustain a verdict on any of Kaiser-Bauer’s negligence theories. Kaiser-Bauer opposed the motion, arguing that she had established a prima facie case on the inspection theory. The trial judge denied Mullan’s motion without comment and submitted the case to the jury.

The jury returned a four-question special verdict in Kaiser-Bauer’s favor, finding Mullan negligent. The trial judge subsequently denied Mullan’s motion for judgment notwithstanding the verdict (JNOV) or a new trial, reasoning that “the record contained competent evidence reasonably tending to sustain the verdict.” The court noted that because the jury was asked generally whether Mullan was “negligent in failing to meet recognized medical standards in the treatment and care of Terry Kaiser-Bauer,” the court could grant or deny JNOV on the entire cause of action, but not on the liability theories individually. This appeal followed.

ISSUES

I. Did the trial court err in denying Mul-lan a directed verdict on Kaiser-Bauer’s tourniquet and muscle-testing liability theories?

II. Does the trial court’s failure to direct a verdict on Kaiser-Bauer’s non-viable liability theories require judgment notwithstanding the evidence on those theories and a new trial on the remaining viable theory?

ANALYSIS

We review de novo the denial of a motion for judgment notwithstanding the verdict. Pouliot v. Fitzsimmons, 582 N.W.2d 221, 224 (Minn.1998). In this review, our limited role is to determine whether the record contains any competent evidence reasonably tending to sustain the verdict. Id. We consider the evidence in the light most favorable to the verdict and will affirm unless the evidence is “practically conclusive against the verdict.” Id. (quotation omitted). We will similarly affirm the denial of a motion for a new trial unless the verdict is “manifestly and palpably contrary to the evidence, viewed in a light most favorable to the verdict.” ZumBerge v. Northern States Power Co., 481 N.W.2d 103, 110 (Minn.App.1992), review denied (Minn. Apr. 29, 1992).

I

A trial court may grant a directed verdict when the evidence is insufficient as a matter of law to present a fact question for the jury. Wall v. Fairview Hosp. & Healthcare Servs., 584 N.W.2d 395, 405 (Minn.1998). This court reviews de novo the trial court’s ruling on a directed verdict. Overocker v. Solie, 597 N.W.2d 579, 581 (Minn.App.1999).

To establish a prima facie medical-malpractice case and avoid a directed verdict, a plaintiff must establish (a) the standard of care recognized by the medical community as applicable to the defendant, (b) that the defendant departed from that standard,'(c) that the defendant’s departure from the standard directly caused the plaintiffs injuries, and (d) damages. Reinhardt v. Colton, 337 N.W.2d 88, 94 (Minn.1983). Because Kaiser-Bauer failed to establish a prima facie case on the tourniquet and muscle-testing theories, the trial court erred in not directing a verdict on those theories.

a. The tourniquet theory

In medical-malpractice cases, the standard of care is a fact question for the jury. Lane by Lane v. Skyline Family Med. Ctr., 363 N.W.2d 318, 324 (Minn.App.1985). The record in this case contained conflicting evidence on whether the generally accepted standard of care required the use of a tourniquet in the performance of carpal-tunnel surgery. Thompson testified that, although the flow of blood can be constricted by the use of vasoconstrictors and electrocautery, generally accepted standards require the use of the tourniquet in the performance of hand surgery. Mullan, on the other hand, testified that neurosurgeons are trained to use vasocon-strictors and electrocautery to control bleeding and that both methods had been shown to be a safe, effective, and efficient alternative to the tourniquet. Given the conflict in the evidence, the jury could reasonably have found that Mullan departed from the standard of care by failing to use a tourniquet.

But because the record contains no testimony or evidence that Mullan’s operative field was bloody, the jury could not reasonably have found that his failure to use a tourniquet proximately caused Kaiser-Bauer’s injuries. The trial court therefore erred in submitting the tourniquet theory to the jury. See Gross v. Victoria Station Farms, Inc., 578 N.W.2d 757, 762 (Minn.1998) (stating expert opinion is required to prove causation if issue is outside realm of common knowledge); Smith v. Knowles, 281 N.W.2d 653, 656 (Minn.1979) (holding the lack of expert testimony that doctor’s departure from standard of care caused plaintiffs injury justified directed verdict).

b. The muscle-testing theory

The court also erred in submitting the muscle-testing theory to the jury. Although the evidence presented a fact question for the jury on whether Mullan breached the generally accepted standard of care by failing to conduct opponens testing or by conducting it improperly, Kaiser-Bauer failed to raise a fact question on whether Mullan’s failure to conduct opponens testing proximately caused Kaiser-Bauer’s injuries. Thompson testified that if Mullan had conducted opponens testing properly, he necessarily would have discovered muscle weakness and either determined that there was nerve impairment or ordered further testing. The nerve would have been repaired sooner and the results would have been optimal because the earlier the repair, the better the results.

But the record does not support Thompson’s assertion that had Mullan conducted opponens testing properly he would have discovered muscle weakness and thereby realized that the recurrent motor branch had been cut. In fact, the record directly contradicts that assertion because Groner conducted opponens testing on Kaiser-Bauer only a few weeks after her last visit with Mullan and, like Mullan, found no significant impairment in muscle function. An inference of causation may not be based on conjecture, speculation, or mere possibility. Bernloehr v. Central Livestock Order Buying Co., 296 Minn. 222, 224, 208 N.W.2d 753, 755 (1973). Thompson’s bare assertion that proper testing would have shown weakness of the abductor pollicis brevis and necessarily would have suggested nerve injury was based on conjecture. His testimony lacked the factual foundation necessary to support an inference that Mullan’s alleged failure to do opponens testing caused Kaiser-Bauer damage. Because Kaiser-Bauer did not establish a reasonable probability that Mullan’s negligence proximately caused her injuries, the trial court erred in submitting the muscle-testing theory of liability to the jury.

Having concluded that the trial court erred in not directing a verdict in Mullan’s favor on the tourniquet and muscle-testing theories, we turn to whether the trial court’s error requires JNOV on those theories and a new trial on the inspection theory.

II

Under Minnesota law, when the trial court erroneously submits one or more negligence theories to the jury and the jury returns a general verdict for plaintiff, defendant is entitled to-judgment notwithstanding the verdict and a new trial, unless it conclusively appears as a matter of law that the verdict is justified on one or more of the properly submitted theories or on other grounds. Schroht v. Voll, 245 Minn. 114, 118, 71 N.W.2d 843, 846 (1955); Ohrmann v. Chicago & N.W. Ry. Co., 223 Minn. 580, 585, 27 N.W.2d 806, 809 (1947). The supreme court has applied the same rule and reasoning in non-negligence cases. See, e.g., Esbjornsson v. Buffalo Ins. Co., 252 Minn. 269, 276, 89 N.W.2d 893, 898 (1958) (setting aside general verdict in favor of insurer in breach-of-contract action and remanding for new trial when issue of insurable interest was improperly submitted to the jury and evidence was conflicting on issue of arson). When the special verdict separates the liability theories, a reviewing court can determine whether a jury’s finding of liability is on a properly submitted theory. But the law requires a new trial when it is impossible to determine whether the jury based its verdict on a theory properly submitted to the jury or one not properly submitted. Schroht, 245 Minn, at 118, 71 N.W.2d at 846.

Kaiser-Bauer does not challenge the Schroht rule. Instead, she argues that the rule applies only in cases involving a general verdict. But the supreme court has also relied on the Schroht rule in analyzing special-verdict cases. See Gilbert v. Brindle, 306 Minn. 569, 570-71, 237 N.W.2d 83, 84-85 (1975) (stating new trial is required “if evidentiary support as to any one of the theories submitted is lacking” and affirming denial of JNOV and new trial on ground that “reasonable inferences of negligence, on any of the several theories of liability submitted to the jury, could be drawn from the circumstantial evidence”); Peterson v. Rodekuhr, 274 Minn. 204, 207 n. 2, 209, 143 N.W.2d 226, 229 n. 2, 230 (1966) (affirming denial of new trial on ground that evidence was sufficient to justify submission of all liability theories to the jury).

Alternatively, Kaiser-Bauer claims that Mullan waived his right to raise the new-trial issue on appeal by failing to object to the form of the special verdict. She argues that “[w]here no objection is made prior to the submission of the matter to the jury, any argument based upon the form of the special verdict is considered to be waived.” But Mullan does not base his argument on the form of the special verdict. He bases it on the trial court’s erroneous submission of one or more liability theories to the jury, which raises a^ question of law.

To preserve a substantive issue for appeal, a party is required only to raise the issue at trial and make the appropriate post-trial motions. See Sauter v. Wasemiller, 389 N.W.2d 200, 201-02 (Minn.1986) (ruling new-trial motion required to preserve for appellate review issues arising at trial); Kitchar v. Kitchar, 553 N.W.2d 97, 102 (Minn.App.1996) (stating error first argued on appeal and not basis of new-trial motion or otherwise presented to trial court may not be considered on appeal), review denied (Minn. Oct. 29, 1996). We can find no authority for the proposition that a party who fails to object to the form of verdict waives the right to seek review of a substantive issue unrelated to the verdict form. On the contrary, Minnesota Rule of Civil Procedure 49 and cases interpreting it suggest that by not objecting, a party waives only challenges to the form of the verdict and the right to a jury trial on issues not submitted to the jury. See Minn. R. Civ. P. 49; Thielbar v, Juenke, 291 Minn. 129, 136, 189 N.W.2d 493, 497 (1971) (suggesting failure to object to form of special verdict constitutes waiver of any objection party may have to form of verdict); Larson v. Degner, 248 Minn. 59, 65-66, 78 N.W.2d 333, 338 (1956) (holding that, by failing to propose additional questions for submission, party waived right to jury trial on issues not submitted to jury on special verdict). By moving for a directed verdict at trial and making the appropriate post-trial motions, Mullan thus properly preserved the new-trial issue.

Because we conclude that the Schroht rule applies to this case, we hold that Mullan is entitled to JNOV on the tourniquet and muscle-testing theories, which the trial court erroneously submitted to the jury. We must next consider whether Kaiser-Bauer is entitled to the jury’s verdict on the inspection theory of liability as a matter of law. We conclude that she is not. The evidence introduced in connection with the inspection theory was conflicting, at least with respect to the appropriate standard of care. Thompson, an orthopedic surgeon, testified that the accepted standard of care for all physicians performing carpal-tunnel surgery, regardless of specialty, requires them to visualize the recurrent motor branch of the median nerve before cutting the transverse carpal ligament and to inspect it before concluding the surgery to ensure that it was not severed. Mullan and McPherson, on the other hand, testified that neurosurgeons are trained not to look for the recurrent motor branch after cutting the transverse carpal ligament unless there is reason to believe that the nerve has been injured. McPherson added it would be bad practice to look for the nerve because of the risk of injury associated with the search.

Because the evidence on the applicable standard of care was conflicting, we cannot conclude as a matter of law that Mullan violated the standard of care by failing to find and inspect the nerve before concluding the surgery. The evidence presents a question of fact that the jury could reasonably have decided either way. As a result, Mullan is entitled to a new trial on the inspection theory of liability.

DECISION

The trial court erred in submitting the tourniquet and muscle:testing liability theories to the jury, and Mullan is therefore entitled to judgment notwithstanding the verdict on those theories. Because the evidence does not establish as a matter of law that Kaiser-Bauer is entitled to the verdict on the inspection theory of liability, we remand for a new trial on that theory.

Reversed and remanded.


author: G. BARRY ANDERSON, Judge.

text:
    CITY OF MAHTOMEDI, Appellant, v. ONE 1995 CHEVROLET BLAZER, VIN: 1GNCT18W9S2124110 Registered Owner: Steven William Sperry, Respondent.
    No. C2-99-1700.
    Court of Appeals of Minnesota.
    May 9, 2000.

      Mary D. Tietjen, Carla J. Heyl, League of Minnesota Cities, St. Paul, for appellant.
    Jeffrey S. Sheridan, Strandemo Sheridan, P.A., Eagan, for respondent.
    Considered and decided by ANDERSON, Presiding Judge, PETERSON, Judge, and AMUNDSON, Judge.
   OPINION

G. BARRY ANDERSON, Judge.

Appellant City of Mahtomedi seeks review of summary judgment awarded on complainant’s counterclaim to civil forfeiture of a seized vehicle. The district court awarded claimant money damages and bad faith attorney fees, concluding that the city converted the vehicle by turning it over to claimant’s creditor without lawful justification. We conclude that the city does not have a duty to defend a replevin action by a lienholder where the owner of the vehicle defaulted on the loan. We reverse.

FACTS

On November 19, 1997, a peace officer patrolling downtown Mahtomedi pulled over claimant Steven William Sperry who was driving a 1995 Chevy Blazer. The officer arrested Sperry for driving after cancellation and for driving under the influence. Sperry’s vehicle was seized and his license was revoked. Sperry, who had past alcohol-related driving convictions, was charged with four counts of DUI violations and one count of driving after cancellation.

On December 2, 1997, the city filed a complaint for forfeiture pursuant to Minn. Stat. § 169.1217 (1997). The complaint requested that the court, upon conviction of Sperry or upon his failure to appear at a court date, issue an order vesting title to the vehicle with the city subject to the lien of IBEW 110 Federal Credit Union.

The credit union filed a replevin action against Sperry and the city, as Sperry had defaulted on the terms of his loan. In an order filed May 27, 1998, the district court ruled that the credit union was entitled to possession of the vehicle for sale at public auction and ordered the city to immediately deliver the vehicle to the credit union. The city complied and the credit union eventually sold the vehicle.

The criminal matter was scheduled for trial, but, due to allegations of improper administration of an intoxilyzer test, a plea was accepted for driving after cancellation. Thus, Sperry was never convicted of an alcohol-related offense. On January 22, 1999, Sperry filed an answer and counterclaim to the forfeiture action. The counterclaim detailed the replevin proceeding and alleged that the city’s conduct constituted a conversion of Sperry’s vehicle.

The city and Sperry filed cross-motions for summary judgment. In an order filed May 3, 1999, the district court denied the city’s summary judgment motion, granted Sperry’s summary judgment motion, and dismissed the forfeiture complaint. The district court reasoned that, because the forfeiture statute clearly states that re-plevin actions against vehicles held for forfeiture are not allowed, Sperry was entitled to damages from the city for conversion for the failure of the city to return the vehicle. The district court subsequently awarded Sperry attorney’s fees, stating that the city asserted a claim that was frivolous and arguably in bad faith. The city appeals.

ISSUE

Does the forfeiture statute obligate the city to defend a replevin action by a lien-holder where the owner of a lawfully seized vehicle has defaulted on the loan?

ANALYSIS

The district court shall grant summary judgment when the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and that either party is entitled to judgment as a matter of law. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn.1993). On appeal, this court must view the evidence in the light most favorable to the party against whom judgment was granted. Id. “The proper construction of a statute is a question of law that we review de novo.” Amaral v. Saint Cloud Hosp., 598 N.W.2d 379, 383 (Minn.1999).

The city argues that the vehicle forfeiture statute does not obligate the city to defend replevin actions. The statute provides:

All right, title, and interest in a vehicle subject to forfeiture under this section vests in the appropriate agency upon commission of the conduct resulting in the designated offense or designated license revocation giving rise to the forfeiture. Any vehicle seized under this section is not subject to replevin, but is deemed to be in the custody of the appropriate agency subject to the orders and decrees of the court having jurisdiction over the forfeiture proceedings.

Minn.Stat. § 169.1217, subd. 3 (1997). The statute plainly states that vehicles seized are not subject to replevin. But the statute does not provide that custodial agencies must somehow ensure that vehicles are not subject to replevin. We agree with the city that the statute does not impose a requirement to defend replevin actions.

The statute clearly states that custody of the vehicle is “subject to the orders and decrees of the court having jurisdiction over the forfeiture proceedings.” Id. In this case, the city was faced with an order from a court with jurisdiction over the forfeiture proceedings. That order directed the city to immediately deliver the vehicle to the credit union. The city had no choice but to comply. See, e.g., In re Ruhland, 442 N.W.2d 783, 786-(Minn.1989) (describing duty to obey court orders).

Sperry, not the city, was responsible for defending against the replevin action. Sperry was in contractual relationship with the credit union and defaulted on his loan terms by failing to make required payments. Sperry was served with the re-plevin action and had an opportunity to defend against it; yet he chose not to make an appearance or otherwise respond. Further, when the district court issued its replevin order, Sperry had an available remedy, a right to appeal that order. But he did not do so. The city certainly had no reason or obligation to appeal the re-plevin order.

The district court concluded that the city had committed conversion. Conversion is “an act of willful interference with personal property, ‘done without lawful justification by which any person entitled thereto is deprived of use and possession.’ ” DLH, Inc. v. Russ, 566 N.W.2d 60, 71 (Minn.1997). Here, no conversion lies because the city did not act without lawful justification. The city was complying with a court order that it had little choice but to obey.

We conclude that Sperry has no cognizable claim against the city. Accordingly, we reverse the district court’s judgment in favor of Sperry. We also reverse the award of attorney’s fees as an abuse of discretion because the record does not reveal any apparent bad faith by the city. Because we reverse on substantive grounds, we do not need to reach the official and statutory immunity arguments raised by the city.

DECISION

Because we conclude that the city was under no statutory obligation to defend against the replevin action, we reverse the district court’s judgment for Sperry and the award of attorney’s fees.

Reversed.


author: DORIS OHLSEN HUSPENI, Judge

text:
    Lisa L. HEIN, Relator, v. PRECISION ASSOCIATES, INC., Respondent, Commissioner of Economic Security, Respondent.
    No. C7-99-1708.
    Court of Appeals of Minnesota.
    May 9, 2000.

      Joseph A. Nilan, Lang, Pauly, Greger-son & Rosow, Ltd., Minneapolis, for relator.
    Precision Associates, Inc., Minneapolis, for respondent.
    Kent E. Todd, Minnesota Department of Economic Security, St. Paul, for respondent commissioner.
    Considered and decided by TOUSSAINT, Chief Judge, WILLIS, Judge, and HUSPENI, Judge.
   OPINION

DORIS OHLSEN HUSPENI, Judge

Relator seeks review of the commissioner’s representative’s decision that she was disqualified from receiving reemployment benefits because she quit her job without a good reason caused by her employer. We affirm.

FACTS

Relator Lisa Hein worked full-time as a rubber cutter for respondent Precision Associates. During 1998, attendance became a problem for her. Hein contends some of her absences were due to medical problems. On September 23, 1998, to address Hein’s absenteeism, Precision reduced her scheduled work hours.

Hein’s attendance problems persisted. Between January and April 1999, she was absent five times and late nine times. Pursuant to Precision’s attendance policy, Hein received several written warnings about her attendance problems, and on May 14, 1999, she left early without prior approval.

On May 21, 1999, Hein was informed that she was being reassigned to the job of utility person, a support position at Precision, with duties including wiping out pans, wiping off machines, and sweeping floors in the area. She was told she would incur no reduction in pay. Upon learning of her reassignment, Hein decided to quit immediately. She cleaned out her things and left a note informing her supervisors.

The reemployment insurance judge determined that Hein was qualified for reemployment benefits because her reassignment constituted a demotion, giving her a good reason to quit that was caused by her employer. The commissioner’s representative reversed, however, concluding Hein had quit her job without a good reason caused by Precision. The commissioner’s representative noted that (1) a demotion for inadequate job performance is not a good reason to quit, (2) the commissioner’s representative was not convinced the attendance problems were beyond Hein’s control, (3) illness does not explain all the times Hein was late, and (4) “while the reassignment was apparently to less desirable job duties, it was well within Hein’s capabilities and at no reduction in pay.”

ISSUE

Did relator’s reduction in hours and reassignment constitute a good reason to quit caused by her employer?

ANALYSIS

An employee who quits employment is disqualified from reemployment benefits unless the employee quit because of a good reason caused by the employer. Minn.Stat. § 268.095, subd. 1(1) (1998). The employee bears the burden of proving there was a good reason to quit. Zepp v. Arthur Treacher Fish & Chips, Inc., 272 N.W.2d 262, 263 (Minn.1978). Whether an employee quit for good reason is a question of law, which we review de novo. Kehoe v. Minnesota Dep’t of Econ. Sec., 568 N.W.2d 889, 890 (Minn.App.1997). A good reason is one

(1) that is directly related to the employment and for which the employer is responsible; and
(2) that is significant and would compel an average, reasonable worker to quit.

Minn.Stat. § 268.095, subd. 3(a) (1998).

A good reason to quit is one that is “real, not imaginary, substantial, not trifling, and reasonable, not whimsical.” Ferguson v. Department of Employment Servs., 311 Minn. 34, 44 n. 5, 247 N.W.2d 895, 900 n. 5 (1976) (citation omitted). The standard is “reasonableness as applied to the average man or woman, and not to the supersensitive.” Id. The commissioner’s findings must “be viewed in the light most favorable to the decision” and will not be disturbed “if there is evidence reasonably tending to sustain them.” White v. Metropolitan Med. Ctr., 332 N.W.2d 25, 26 (Minn.1983).

Hein argues that the commissioner’s findings do not support the conclusion that because she was demoted due to inadequate job performance, she was disqualified from receiving benefits. We reject Hein’s argument. Hein received six written warnings between July 1997 and the day she quit. While she was not subject to automatic termination under Precision’s attendance policy, that policy does indicate Precision’s expectations and standards for employees. It is not necessary for Hein to have been subject to termination under the policy in order to justify Precision’s decision to reassign her due to her inadequate job performance. To the extent that Hein argues she could not be reassigned so long as her conduct did not meet the automatic termination provisions of Precision’s attendance policy, that argument is without merit.

The record clearly shows that Hein’s reduction in hours was due to poor attendance and that the reassignment was to prevent her continued absences from affecting production. Both actions were taken in direct response to Hein’s poor attendance in the production position of rubber cutter. Hein’s continued failure to work all of her scheduled hours constituted inadequate job performance and justified Precision’s decision to reduce her hours and, when that did not solve the problem, to reassign her. See Dachel v. Ortho Met, Inc., 528 N.W.2d 268, 270 (Minn.App.1995) (affirming commissioner’s judgment that relator failed to show good cause to quit where job performance deficiencies justified demotion); see also Jones v. Rosemount, Inc., 361 N.W.2d 118, 120 (Minn.App.1985) (holding that, despite lack of evidence that relator’s absenteeism was willful or deliberate, it was sufficiently chronic and excessive to demonstrate relator’s lack of concern for her job).

DECISION

Because the record shows Hein’s own deficient job performance prompted her reduction in hours and reassignment, we find no error in the commissioner’s representative’s conclusion that Hein failed to show she had a good reason to quit caused by her employer.

Affirmed.

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