author: LANCASTER, Justice.

text:
    STATE of Minnesota, Respondent, v. Raymond Buster HUNT, petitioner, Appellant.
    No. C5-99-72.
    Supreme Court of Minnesota.
    Aug. 3, 2000.

      John M. Stuart, State Public Defender, Sharon E. Jacks, Asst. State Public Defender, Lawrence Hammerling, Deputy State Public Defender, Minneapolis, for appellant.
    Michael Hatch, Atty. Gen., St. Paul, Charles E. MacLean, Winona County Atty., Steve L. Schleicher, Asst. Winona County Atty., Winona, for respondent.
   OPINION

LANCASTER, Justice.

Appellant Raymond Buster Hunt (Hunt) was convicted in Winona County District Court of four counts of controlled substance crimes. Because the prosecution did not disclose to defense counsel until after the jury returned its guilty verdicts that a psychologist who examined the state’s primary witness pursuant to Minn. R.Crim. P. 20.01 had determined that the witness was incompetent to stand trial, we reverse appellant’s conviction and remand for a new trial. We also conclude that the prosecution’s closing argument included comments that, while of questionable propriety, do not in themselves warrant a new trial.

The primary witness against Hunt at trial was Jonathan Schalow. Schalow was a government informant who met Hunt in jail in December of 1997. On or about December 22, at the direction of another inmate, Schalow approached law enforcement officials and offered to purchase cocaine from Hunt. Schalow then reported to authorities that Hunt had told him earlier in the day that Hunt could “reach out from in here” (jail) to sell Schalow crack cocaine upon Schalow’s release. Law enforcement officials arranged for Schalow’s release that same day. Once released, Schalow telephoned a juvenile who Hunt had said could supply Schalow with drugs. Schalow purchased several grams of crack cocaine from the juvenile, but police officers decided not to arrest the juvenile at the time for fear it would end their investigation of Hunt.

On January 1, 1998, Schalow was again arrested and jailed. Schalow immediately contacted the police and offered to make another purchase of cocaine from Hunt, who had since been released from jail. Police officers recorded Schalow’s telephone conversation with Hunt, who promised that even if he did not have the drugs by the prearranged time, he would still meet Schalow to arrange a later delivery time. At the appointed hour and place, police officers observed a man who appeared to be looking for someone. They approached the man and identified him as Hunt.

According to the officer’s testimony, Hunt stated that he was on his way to an area motel to meet a friend named “John” whose last name he did not know, and denied being there to sell drugs. Hunt did not have any contraband on him when the police officers arrested him. However, Hunt was carrying a piece of paper with Schalow’s telephone number written below the word “Crank,” Schalow’s nickname. Subsequently, during two interviews, Hunt variously admitted and denied that his was the voice in the taped calls speaking to Schalow. Hunt was charged with one count of controlled substance crime in the first degree, one count of controlled substance crime in the fourth degree, and two counts of conspiracy to commit controlled substance crime in the first degree.

Schalow remained in jail after he set up the second controlled drug purchase. In March 1998 he attempted suicide. Shortly thereafter the prosecutor in Hunt’s case decided to depose Schalow for fear he would not survive to testify. Defense counsel was present at the deposition.

In advance of his own and Hunt’s trial, • Schalow moved for an examination pursuant to Minn. R.Crim. P. 20.01 to determine if he was competent to stand trial. By an order dated July 9, 1998, the court in Schalow’s ease granted that motion. Scha-low was examined by a psychologist on July 15,1998.

Hunt’s trial began on Monday, August 3, 1998. The state does not dispute the characterization of Schalow as its key witness at trial. At Hunt’s trial, Schalow testified to his jailhouse discussion with Hunt about buying drugs; that Hunt said he could set a deal up from inside the jail; that Scha-low bought drugs from Hunt’s alleged co-conspirator while Hunt remained in jail; and that Schalow was again arrested and jailed and then set up a second deal with Hunt to secure his own release from jail. On cross-examination, Hunt attempted to establish that Schalow violated his agreement with law enforcement to act as a confidential informant, and threatened not to testify, or if he did testify to lie on the stand. No mention was made of Schalow’s July 15 competency examination during Hunt’s trial.

On Wednesday, August 5, 1999, the day before final arguments and the commencement of jury deliberations in Hunt’s trial, the prosecutor’s office received the psychologist’s report from Schalow’s Rule 20.01 examination, in which the psychologist concluded that Schalow was not competent to stand trial. The prosecutor in Hunt’s case apparently did not focus his attention on the report that week.

The jury returned guilty verdicts on all four counts on the afternoon of Thursday, August 6. By the following Monday,- the prosecutor had digested the contents and appreciated the significance of the psychologist’s report from Schalow’s Rule 20.01 evaluation. At that point the prosecutor informed Hunt’s counsel that she should bring a discovery motion to obtain the results in order to preserve the record for appeal.

Hunt then moved to compel discovery, to dismiss, for judgment of acquittal, and for a new trial. Meanwhile, the court in Schalow’s case ordered an adverse competency evaluation. The court in Hunt’s case observed that nothing “raised a red flag” during Schalow’s testimony in Hunt’s case with respect to Schalow’s competency. Nonetheless, the court withheld ruling on Hunt’s motions until the adverse Rule 20.01 examination of Sehalow was completed.

After this second competency evaluation, conducted in September 1998, the examining psychologist reported his conclusion that Sehalow was competent to assist in his own defense. At the same time the court received that information, it also received an affidavit signed by Sehalow stating that he had deliberately tricked the first examiner into thinking that Sehalow was incompetent. He did this, he said, because he was going to be returned to custody in Wisconsin where authorities insisted on incarcerating him alongside prisoners against whom he had testified, and he feared for his safety.

Hunt then added to his post-trial motions a request for a new trial based on newly discovered evidence, specifically the affidavit. The trial court denied Hunt’s motions and the court of appeals affirmed. Hunt then appealed to this court. Here, Hunt alleges a discovery violation in the state’s failure to disclose Schalow’s competency examination and prosecutorial misconduct in closing argument.

I.

We first decide this question: When the state receives information that a psychologist conducting an examination pursuant to Minn. R.Crim. P. 20.01 has determined that the state’s key witness is incompetent to stand trial, must that information be disclosed to the defense? We hold that it must.

The state’s obligations in discovery derive from the Minnesota Rules of Criminal Procedure and also from the constitutional guarantees of due process. The rules require the prosecuting attorney to allow the defense access to “all matters * * * which relate to the case” and specifically require disclosure of any material in the possession or control of members of the prosecution staff. Minn. R.Crim. P. 9.01, subd. 1(7).

The constitutional guarantees of due process also require disclosure. “[T]he suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Since Brady, the Court has expanded the disclosure obligation to include impeaching information. See United States v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). The duty to disclose such evidence exists even where there has been no request by the accused, see United States v. Agurs, 427 U.S. 97, 107, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976), and the remedy for a Brady violation is a new trial, see Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). Hunt argues here that the state was required to inform the defense of the results of Schalow’s competency evaluation and that the failure to do so warrants a new trial.

Brady disclosure applies only to material evidence. See Brady, 373 U.S. at 87, 83 S.Ct. 1194. Evidence is material “if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” Bagley, 473 U.S. at 682, 105 S.Ct. 3375. Recently the Court described the “three components of a true Brady violation: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.” Strickler v. Greene, 527 U.S. 263, 281-82, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999).

We conduct a similar, but not identical, inquiry under the Minnesota Constitution. We have at times followed a harmless error analysis for undisclosed evidence, not granting a new trial where the evidence could not in any reasonable likelihood have affected the judgment of the jury. See State v. Poganski, 257 N.W.2d 578, 579-80 (Minn.1977); see also State v. Clobes, 422 N.W.2d 252, 255 (Minn.1988). We consider, then, whether evidence that Schalow was found incompetent to stand trial could have affected the judgment of the jury.

The state correctly notes that the standard for competency to stand trial at which the Rule 20.01 evaluation is aimed is a different standard than the standard for ■witness competency. If a witness understands the obligation of an oath and is capable of correctly relating the facts to which the testimony relates, the witness is competent. See State ex rel. Dugal v. Tahash, 278 Minn. 175, 177-78, 153 N.W.2d 232, 234 (Minn.1967). In contrast, if the defendant “(1) lacks sufficient ability to consult with a reasonable degree of rational understanding with defense counsel; or (2) is mentally ill or mentally deficient so as to be incapable of understanding the proceedings or participating in the defense,” the defendant is incompetent to stand trial. Minn. R.Crim. P. 20.01, subd. 1.

Notwithstanding the differences between witness competency and competency to stand trial, the fact that a witness has been determined to be incompetent to stand trial by an examining psychologist should seriously concern the prosecution about that individual’s fitness to testify as a witness. A court’s finding of incompetency under Rule 20.01 reflects a determination that the subject lacks the capacity to understand criminal proceedings or is mentally ill or deficient. The determination of a mentally ill person’s competency to testify is usually made only after the court’s preliminary examination of the witness. See State v. Berry, 309 N.W.2d 777, 782 (Minn.1981); Tahash, 278 Minn, at 177, 153 N.W.2d at 234. This procedural safeguard reflects our concern with the integrity of the presentation of evidence at trial. Only where the trial court is satisfied that the witness, despite a mental illness, understands the obligation of the oath and can relate the facts to which the testimony relates will the court allow the witness to testify. See Tahash, 278 Minn, at 177, 153 N.W.2d at 234. While we are concerned here with a psychologist’s conclusion (rather than a court finding) that Schalow was incompetent to stand trial, the prosecution still had access to clearly impeaching evidence, and was thus obligated under Brady to disclose.

Nonetheless, the state maintains that the prejudice requirement of Brady is not met in this case. The state argues that Hunt cannot establish that he was prejudiced by not knowing that one of the state’s witness had been determined by a psychologist to be incompetent to stand trial, when that witness was ultimately found by the court to be competent.

With the benefit of hindsight, there were events that happened after the undisclosed examination results came to the prosecutor’s office that decreased the significance of the nondisclosure (the second examination and a court finding of competence). There were also events that increased the significance of the nondisclosure (Scha-low’s affidavit showing that he had lied to manipulate his psychological examination). We cannot say what might have occurred on a reopened cross-examination of Scha-low if he had been questioned about the examination. However, at a minimum, we are convinced that had Schalow’s competency report come to the attention of the trial court, the presiding judge would have been compelled to independently ascertain Schalow’s competency as a witness. See Berry, 309 N.W.2d at 782. Had Schalow been deemed competent to testify, this new information would likely have given defense counsel new grounds for cross-examination regarding his mental stability and perhaps his ability to mislead. See, e.g., United States v. Skorniak, 59 F.3d 750, 755 (8th Cir.1995) (noting that defense’s ability to fully cross-examine prosecution witness about his psychological problems mitigated court’s refusal to order a psychological examination of the witness).

Nondisclosure of evidence that is merely impeaching may not typically result in the kind of prejudice necessary to warrant a new trial. For example, where testimony of the witness sought to be impeached by nondisclosed evidence “was not the only damning evidence against defendant,” we have determined that the likelihood of prejudice is decreased. State v. Jackson, 346 N.W.2d 634, 638 (Minn.1984). In this case, however, the state concedes that its case rested largely on the testimony of Schalow. Hunt’s cross-examination of Schalow exposed his threat to lie on the stand, but did not impugn his ability to accurately and honestly relate facts the way that the competency evaluation results would have. Where the nondisclosed evidence could have significantly impeached the state’s key witness, regardless of subsequent developments with that evidence, we conclude that the defendant has suffered prejudice from the nondisclosure. See Giglio, 405 U.S. at 154-55, 92 S.Ct. 763 (holding government’s failure to disclose impeaching evidence regarding only witness to crime is prejudicial).

The state argues that it should not be required to disclose results of a Rule 20.01 evaluation because those results are not public and must be kept in confidence by the recipient. We do not underestimate the importance of the subject’s privacy interests in the results of a psychological evaluation. Further, the prosecutor may have had a legitimate concern regarding disclosure. However, the privacy protection that attaches to Rule 20.01 psychological reports does not require the state to sit silently while in possession of a report concluding that its main witness has been determined by a psychologist to be incompetent to stand trial. When the prosecutor’s office received the results of Schalow’s first competency evaluation, the integrity of Scha-low’s testimony against Hunt became highly suspect. The state was required to do immediately what it did here post-trial: request that the defense make a proper motion and bring the matter to the court’s attention so that the court could protect Schalow’s privacy interests to the extent feasible.

While we are satisfied that the prosecution acted in good faith, Schalow’s examination should have been disclosed to the defense. Given his critical importance to the state, we cannot say that this evidence could not in any reasonable likelihood have affected the judgment of the jury. See Poganski, 257 N.W.2d at 579-80. Accordingly, Hunt is entitled to a new trial.

II.

As we are remanding this case for a new trial, we will also address certain of Hunt’s prosecutorial misconduct claims. See State v. Post, 512 N.W.2d 99, 103 (Minn.1994) (cautioning prosecutor against repeating improper arguments on retrial).

Hunt argues that the prosecutor’s closing argument denied him a fair trial by misinforming the jury of the state’s burden of proof and by improperly attacking Hunt’s voice-identification expert, and the trial court, acting as postconviction court, therefore erred in not granting Hunt a new trial on this ground. A postconviction court’s decision will not be disturbed except upon an abuse of discretion. See Gustafson v. State, 477 N.W.2d 709, 712 (Minn.1991) (quoting State v. Bliss, 457 N.W.2d 385, 391 (Minn.1990)).

A defendant alleging prosecu-torial misconduct generally will not be granted a new trial if the misconduct was harmless beyond a reasonable doubt. See State v. Atkins, 543 N.W.2d 642, 648 (Minn.1996). Further, whether prosecuto-rial misconduct was harmless depends partly upon the type of misconduct committed. See State v. Caron, 300 Minn. 123, 127, 218 N.W.2d 197, 200 (1974). For serious prosecutorial misconduct, the misconduct is harmless beyond a reasonable doubt if the v.erdict rendered was surely unattributable to the error. See State v. Ashby, 567 N.W.2d 21, 28 (Minn.1997). For less serious misconduct, the test is whether the misconduct likely played a substantial part in influencing the jury to convict. See Caron, 300 Minn. at 128, 218 N.W.2d at 200.

Hunt contends that the prosecutor twice used a misleading analogy that suggested the state’s burden of proof was not beyond a reasonable doubt but a mere preponderance of the evidence. Misstatements of the burden of proof are highly improper and would, if demonstrated, constitute prosecutorial misconduct. See State v. Coleman, 373 N.W.2d 777, 782 (Minn.1985). However, Hunt’s counsel did not object to the analogy made by the prosecutor in his closing argument. See Atkins, 543 N.W.2d at 647 (noting that failure to object to prosecutor’s statement forfeits defendant’s right to have issue reviewed on appeal). In the absence of a timely objection, we review the claim under the plain-error rule, asking whether the alleged conduct was so clearly erroneous under applicable law and so prejudicial to the defendant’s right to a fair trial that the defendant’s right to a remedy should not be forfeited. See Rairdon v. State, 557 N.W.2d 318, 323 (Minn.1996).

In closing argument the prosecutor made an analogy to the ancient Greek juries, the substance of which implied that Greek juries would place a stone on either side of a scale for each successful argument by one party or the other. We agree with the court of appeals that the prosecutor’s analogy to the Greek jury, although questionable, does not rise to the level of plain error. The prosecutor stated the appropriate burden of proof in his closing argument, and the trial court also properly instructed the jury on the state’s burden of proof and told the jury to disregard any statements by the attorneys to the contrary. Given that both the prosecutor and the trial court instructed the jury on the correct burden, the prosecutor’s conduct did not deny Hunt his right to a fair trial. Nonetheless, the analogy was arguably confusing and should not be repeated should Hunt be retried.

Concluding that the state violated the discovery rules by failing to timely disclose the results of a competency evaluation of its key witness, and that this nondisclosure prejudiced Hunt, we reverse Hunt’s convictions and remand for a new trial.

Reversed and remanded.

      . The state alleged two counts of conspiracy to commit controlled substance crime in the first degree, in violation of Minn.Stat. §§ 152.021, subds. 1(1), 3(b), 152.096, subd. 1, 609.175, subd. 2 (1998); one count of controlled substance crime in the first degree, in violation of Minn.Stat. §§ 152.021, subds. 1(1), 3(b), 609.05 (1998); and one count of controlled substance crime in the fourth degree, in violation of Minn.Stat. §§ 152.024, subds. 1(1), 3(b), 152.01, subd. 15a(2) (1998).

      . Minn. R.Crim. P. 20.01 provides in part:
      Subd. 2. If during the pending proceedings, the prosecuting attorney, defense counsel or the court has reason to doubt the competency of the defendant, then the prosecuting attorney or defense counsel by motion or the court on its initiative shall raise that issue.

      (3) The court shall appoint at least one examiner * ⅜ ⅛ to examine the defendant and to report to the court on the defendant’s mental condition. ⅞ * *

      (4) At the conclusion of the examination, a written report of the examination shall be forwarded to the judge who ordered the examination, and the judge shall cause copies of the report to be delivered forthwith to the prosecuting attorney and to defense counsel. The contents of the report shall not be otherwise disclosed until the hearing on the defendant's competency.

      . Hunt argued two discovery violations before the postconviction court as grounds for a new trial: the failure by the state to inform the defense about the impending Rule 20 evaluation, and the state’s receipt and nondisclosure of the evaluation results during trial. The court found no discovery violation and denied Hunt’s motions. Hunt then argued to the court of appeals that newly discovered evidence, in the form of Schalow's affidavit, required reversal of the postconviction court’s denial of Hunt’s motions. This also proved unsuccessful. In his petition for review, Hunt reiterated the discovery violations as grounds for relief and fully briefed the issue in the context of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Counsel for the state, the same counsel during all stages of this case, filed his brief before receiving Hunt's (the petitioner's) brief, and therefore did not directly address Brady. At oral argument counsel for the state argued that any Brady violation was waived because of Hunt’s failure to assert it before the court of appeals. We believe that the issue was sufficiently presented to the court of appeals in the form of Hunt’s newly discovered evidence argument and counsel for the state suffered no prejudice as he was aware of the discovery argument since the beginning of the postconviction proceedings.

      . The prosecutor in Hunt's case acknowledged at oral argument that he knew the Rule 20.01 report was received in his office before the jury returned a verdict but stated that he did not learn that Schalow had been deemed incompetent by the first examining psychologist until after the jury returned its verdict. Our inquiry, however, is not limited to Hunt's prosecutor; instead, knowledge and disclosure responsibility is imputed to the- entire Winona County Attorney’s Office, which was responsible for prosecuting both cases. See Minn. R.Crim. P. 9.01, subd. 1(7). Therefore, the duty to disclose the Rule 20.01 results fell immediately to the entire prosecution office, regardless of when Hunt's prosecuting attorney learned of the evaluation result.

      . Minnesota Rule of Criminal Procedure 9.01, subd. 1, provides:
      Without order of court and except as provided by Rule 9.01, subd. 3, the prosecuting attorney on request of defense counsel shall, before the date set for Omnibus Hearing provided for by Rule 11, allow access at any reasonable time to all matters within the prosecuting attorney’s possession or control which relate to the case and make the following disclosures:

      (7) The prosecuting attorney’s obligations under this rule extend to material and information in the possession or control of members of the prosecution staff and of any others who have participated in the investigation or evaluation of the case and who either regularly report or with reference to the particular case have reported to the prosecuting attorney's office.

      . However, we have also granted a new trial in the interests of justice without a showing of prejudice. See State v. Kaiser, 486 N.W.2d 384, 386 (1992) ("Our cases require much more of the prosecution than the federal cases require and do not always insist on a traditional showing of prejudice in order to justify a new trial.”); State v. Hall, 315 N.W.2d 223, 225 (Minn.1982); State v, Schwantes, 314 N.W.2d 243, 245 (Minn.1982); State v. Zeimet, 310 N.W.2d 552, 553 (Minn.1981). Thus, we will reverse a conviction even without prejudice in the exercise of our supervisory power over the trial court and in the interests of justice. See Kaiser, 486 N.W.2d at 386.

      . We acknowledge a federal court’s application of a public record exception to Brady. See United States v. Jones, 34 F.3d 596, 600 (8th Cir.1994). Applying such an exception in this case, however, would not dispose of the issue. The fact that Schalow was the subject of a competency evaluation was a matter of public record, and could have been discovered by defense counsel, especially since the defense knew that Schalow was being prosecuted. The results of Schalow's competency evaluation, however, were not a matter of public record. Hunt’s counsel could not have possibly known the residís of the evaluation during the trial, as the confidentiality of the evaluation report was protected by Minn. R.Crim. P. 20.01, subd. 2(4).

      . According to one authority, a juror (dikast) in ancient Greece actually used a slightly different method of tallying his vote in a trial. "The verdict was given by each dikast depositing in one of two urns a bean, pebble or brass ball, indicative of his verdict.” Maximus A. Lesser, The Historical Development of the Jury System 24 (1894) {citing William Forsyth, Hortensius: The Advocate 33-34 (1849)).


source: Caselaw Access Project

author:
STRINGER, Justice.
      PAGE, Justice GILBERT, Justice GILBERT, Justice

license: Public Domain

text:
    Hoang Minh LY d/b/a Lee’s Garden, petitioner, Appellant, v. Kim NYSTROM, et al., Respondents.
    No. C6-99-565.
    Supreme Court of Minnesota.
    Aug. 3, 2000.

      Barbara R. Kueppers, Mpls., Ksenia Ru-densiuk, St. Paul, for appellant.
    Stephen William Hance, Martin & Squires, P.A., St. Paul, for respondents.
    Mike Hatch, Atty. Gen., Prentiss Cox, St. Paul, for amicus curiae State of Minn.
    Thomsen & Nybeck, P.A., Donald D. Smith, David J. McGee, Edina, for amicus curiae Minn. Assn, of Realtors.
    Will Mahler Law Office, Will Mahler, Rochester, for amicus curiae Council on Asian-Pacific Minnesotans.
    Meagher & Geer, P.L.L.P., William H. Hart, Thomas E. Propson, Jenneane L. Jansen, Minniapolis, for amicus curiae Legal Aid Society of Minneapolis.
    Winthrop <& Weinstein, P.A., Thomas H. Boyd, Charles Schoenwetter, St. Paul, for amicus curiae Southern Minnesota Regional Legal Services. .
    Lind, Jensen, Sullivan & Peterson, P.A., William L. Davidson, Minneapolis, for ami-cus curiae Minn. Defense Lawyers Assn.
   OPINION

STRINGER, Justice.

During negotiations between appellant Hoang Minh Ly and respondent Kim Nys-trom for the purchase of respondent’s restaurant, respondent made misrepresentations to appellant relating to monthly profits and the condition of the restaurant and its inventory. The restaurant never made a profit and discussion between the parties led to a contract cancellation. Appellant then brought suit alleging common law fraud and a violation of Minnesota’s Consumer Fraud Act (CFA), Minn.Stat. § 325F.69, subd. 1 (1998), and included a claim for attorney fees under the Private Remedies section of the Attorney General Statute (Private AG Statute), Minn.Stat. § 8.31, subd. 3a (1998). The trial court ruled that respondent defrauded appellant and awarded him a common law fraud damage remedy but denied his motion for attorney fees finding that there was no violation of the CFA because respondent’s representations were not made to a large number of consumers. The court of appeals affirmed. See Ly v. Nystrom, 602 N.W.2d 644, 647 (Minn.App.1999). We reverse in part and affirm in part.

In 1981 appellant Hoang Minh Ly came to the United States from Vietnam at the age of 32. When first arriving in the U.S. he worked in various Chinese restaurants as a dishwasher and cook’s assistant, positions neither requiring nor providing any business or management experience. In 1989 he met respondent Kim Nystrom while employed as a cook’s assistant and she as a waitress at May Ninh restaurant in Maple Grove. Appellant speaks, reads and writes very little English and his formal education ended in Vietnam at the second grade. Respondent is also from Vietnam but speaks and reads English.

A few weeks after the two met respondent left the May Ninh restaurant to work at another restaurant, and between 1990 and 1995 appellant and respondent spoke periodically regarding jobs at various restaurants, including a Shakopee restaurant called Chin Yung, the subject of this litigar tion. In June of 1996 respondent told appellant she had bought the Chin Yung in 1994 and that she was having trouble hiring people, she wanted to sell the restaurant and encouraged him to consider buying it.

A few days later, on approximately June 14, 1996, appellant visited the restaurant before it opened in the morning. Respondent told appellant “this is a very good place, and it’s a good business,” and that she would sell the restaurant for $100,000. Appellant called the next day asking respondent to lower the price; she refused, warning him that someone else wanted to buy it so if he was interested he should decide soon. Respondent then represented to appellant that the restaurant’s estimated monthly gross revenue was between $25,000 and $30,000 and the monthly profits between $6,000 to $7,000. Respondent told appellant it was a good business and that she would not trick him because they were friends.

The next day, approximately June 15, appellant and his wife went to the restaurant at about 8:00 p.m. The restaurant was not busy and when appellant asked why there were so few patrons respondent replied-that customers in Shakopee usually eat and go to sleep earlier because they commute to work. When appellant’s wife asked to see the books respondent said that they were not there but a lawyer did not need to review them because she would not lie to appellant. Respondent agreed to lower the purchase price from $100,000 to $90,000 with a cash down payment of $20,000. She also agreed to charge appellant $2,000 .a month for rent, $1,200 a month for taxes and a 9% interest rate on the business loan. That night appellant decided to buy the restaurant because he thought $90,000 was a fair price to pay for a restaurant taking in $25,000 to $30,000 a month and because he trusted that respondent would not misrepresent the business.

On June 19, 1996, the parties met again and appellant’s wife wrote a check for $5,000, leaving blank the payee designation on the check at respondent’s request. The remaining $15,000 was to be paid before June 30.' Appellant wanted to show his lawyer the agreement but decided not to do so after respondent assured him that he did not need a lawyer because they were friends and she would not cheat him. When the check' was returned to appellant the payee was designated “Anderson Produce.”

On June 25, 1996, at around 2:00 p.m. the parties met to sign the lease agreement and promissory note, which respondent prepared, and she again told appellant he did not need a lawyer. Appellant signed the documents without reading them and respondent did not review the documents with him.

At the closing on June 80, 1996, appellant delivered checks for the down payment balance-one for $10,000 and another for $5,000-and respondent again asked appellant to leave the payee designations blank. Appellant also bought food inventory from respondent for $3,990.27 but a few days later about 50% of the meat and all of the shrimp was unusable and about 60% of the canned food was unusable because the cans were swollen. Respondent agreed to reduce the purchase price of the inventory by subtracting the value of the unusable food but the parties could not agree on the amount of the reduction. Appellant estimated the inventory to be worth a little over $1,000.

Appellant retained the original menu, the sign and the lunch buffet for a couple of weeks after opening the restaurant but took in only a little over $200 daily. When appellant told respondent that the restaurant was not taking in $700 a day she suggested that he change the sign, menu and buffet. Appellant followed the suggestions and with radio ads and coupons business increased slightly but profits did not increase. The restaurant never made $700 a day and never turned a profit. Appellant estimated his sales per month to be about $6,000 to $7,000, not the $25,000 to $30,000 respondent represented. The physical facilities presented additional problems with the plumbing backed up, the refrigerator and dishwasher not working, the roof leaking, faulty wiring and a parking lot with many potholes. Respondent later told appellant that this may be his fate and to see a fortune teller. She also told him that she would lower his rent but she never did.

Appellant paid respondent about $4,000 in July and August but as his loans increased the amount he could pay decreased-to $3,000 in September, $1,000 in October and $1,000 in November. Respondent refused his offer of a payment of $1,000 for December, warning him that he owed her three months rent and she was going to evict and sue him. In December, respondent called almost every day to ask for payment and told appellant that if he did not give her back the restaurant she would take him to court where he would lose his credit and his home would be seized. During this period appellant was able to keep the restaurant open by running up a $45,000 credit card debt and borrowing approximately $30,000 from friends and family.

On December 22, 1996, an insurance agent went with respondent to the restaurant “with papers ⅜ * * declaring] the contract null.” When appellant said that he wanted his lawyer to evaluate the papers respondent told him that if he did not sign the papers by the next day “the police will come and lock the doors and you cannot bring anything out of the restaurant. And if you try to get in, they will take you away. They will lock you up.”

The next day, December 23, 1996, respondent went to appellant’s house, again with an insurance agent, and told him that he either had to pay her the full amount he owed or sign a contract stating that all prior contracts were cancelled, and if he did not do either she would take appellant to court because his rent was three months late. Appellant signed the contract declaring all prior contracts “null.” Respondent also gave appellant a check for $2,500 to help him pay bills and support his family, but she stopped payment on the check. Respondent sold the restaurant to another purchaser later that day.

Appellant filed a complaint on October 21,1997 alleging, among other counts, that respondent defrauded appellant and violated the CFA, and requested damages in excess of $50,000, attorney fees and costs pursuant to the Private AG Statute and pre- and post-judgment interest. After a three-day trial the court ruled that respondent defrauded appellant and that the value of the restaurant was $65,000 at the time of the sale. The court applied the damage award formula for common law fraud-the difference between what appellant paid for the restaurant and the fair market value of the restaurant, plus damages resulting from reasonable attempts to mitigate-and reasoned that since appellant bought the restaurant for $90,000 and the fair market value of the restaurant was $65,000, appellant was entitled to judgment for $25,000. The court made no ruling regarding application of the CFA or the Private AG Statute in this order.

On November 9, 1998, appellant moved for costs and attorney fees pursuant to the CFA and the Private AG Statute, claiming $60,920.55. The trial court denied the motion on the basis that appellant’s award was based on a common law fraud finding which provided no right to recover attorney fees and the CFA did not apply because respondent’s representations were not made to a large number of consumers and did not have the potential to deceive or ensnare any other consumer. With no violation of the CFA, the court ruled that appellant could not recover attorney fees under the Private AG Statute.

The court of appeals affirmed both the finding of common law fraud and the ruling that appellant had no cause of action under the CFA, noting that appellant did not meet the definition of “consumer” because he bought the restaurant with “the intent to produce, manufacture, and resell food, rather than with the intent of direct ownership of the product.” Ly, 602 N.W.2d at 646-47. As to application of the CFA, the court held that it “only applies in consumer fraud situations and the fraud or misrepresentation must be disseminated to others.” Id. The court concluded that this was a one-on-one business transaction and that if the court were to adopt appellant’s interpretation of the CFA, the CFA would provide remedies for virtually every fraudulent transaction, an expansion of the statute not contemplated by the legislature. See id. Finally, the court denied appellant’s request for prejudgment interest of $1,265.40 because the district court did not rule on the issue. See id.

On review here, we address de novo as a matter of statutory interpretation appellant’s argument that as a victim of common law fraud he has a cause of action under the CFA and is entitled to attorney fees and costs under the Private AG Statute. See Hibbing Educ. Ass’n v. Public Employment Relations Bd., 369 N.W.2d 527, 529 (Minn.1985).' We are guided- by the principle that the object of all statutory interpretation and construction of law is to ascertain and effectuate the intent of the legislature, see Minn.Stat. § 645.16 (1998), and we recognize the broad legislative powers in the passage of laws relating to preserving and protecting the public from mischievous business practices, see State v. Crabtree Co., 218 Minn. 36, 40, 15 N.W.2d 98, 100 (1944). The CFA and Private AG Statute are legislative enactments of this nature and are generally discussed and applied in concert, but they are separate and distinct in their structure and purpose-thus we analyze them separately.

I. The Consumer Fraud Act

In the late 1950’s many state legislatures enacted statutes designed to prohibit deceptive practices and to address the unequal bargaining power often present in consumer transactions. See Jeff Sovern, Private Actions Under the Deceptive Trade Practices Acts: Reconsidering the FTC Act as Role Model, 52 Ohio St. L.J. 437, 446 (1991). By 1981, every state in the United States had statutes providing for consumer protection enforcement by a state agency-commonly, as in Minnesota, the state attorney general-with broad enforcement authority. See id. Minnesota’s Consumer Fraud Act was adopted in 1963 to achieve the same purpose and provides the attorney general with authority to seek and obtain injunctive relief to protect consumers from unlawful and fraudulent trade practices in the marketplace. See State v. Philip Morris, Inc., 551 N.W.2d 490, 496 (Minn.1996) (stating consumer protection statutes “are generally very broadly construed to enhance consumer protection”). The CFA provides in relevant part:

The act, use, or employment by any person of any fraud, false pretense, false promise, misrepresentation, misleading statement or deceptive practice, with the intent that others rely thereon in connection with the sale of any merchandise, whether or not any person has in fact been misled, deceived, or damaged thereby, is enjoinable as provided herein.

Minn.Stat. § 325F.69, subd. 1.

The CFA defines “merchandise” as “objects, wares, goods, commodities, intangibles, real estate, loans, or services.” Minn.Stat. 325F.68, subd. 2 (1998). The word “consumer” appears nowhere in the CFA, however the statutory purpose of protecting consumers was clear from its inception when it was presented to the legislature in 1963:

In most areas, the proper way to solve consumer problems is to educate the consumer; there are, however, other areas where the complication of the problem, or the peculiar nature of the consuming public involved, makes it necessary for the state to protect the consumer.
* ⅜ * ⅜
[This bill] is designed to expand the powers of the state to deal with fraud, deception, and misrepresentation in connection with the sale of merchandise. •i= * * [T]he intrastate practice of fraud has grown into a field of great profit and great damage both to individual citizens and to honest businessmen.

We recently observed that the CFA “reflect[s] a clear legislative policy encouraging aggressive prosecution of statutory violations” and thus should be “generally very broadly construed to enhance consumer protection.” Philip Morris, Inc., 551 N.W.2d at 495-96 (holding that Blue Cross and Blue Shield of Minnesota, a health care provider, had standing to pursue claims under the CFA for increased costs incurred in medical and hospital care of insureds with tobacco-related illnesses). We have also noted that the CFA is remedial and should be liberally construed in favor of protecting consumers. See Boubelik v. Liberty State Bank, 553 N.W.2d 393, 402 (Minn.1996); see generally Governmental Research Bureau, Inc. v. Borgen, 224 Minn. 313, 323, 28 N.W.2d 760, 766 (1947).

Our recent decisions bear out this broad and flexible application of the CFA. In Church of Nativity of Our Lord v. WatPro Inc., the respondent alleged that the appellant, a large chemical corporation, violated the CFA when it produced and installed defective roofing materials on Church of Nativity’s school and convent. 491 N.W.2d 1, 3—4 (Minn.1992). We rejected the appellant’s argument that because the church was a “sophisticated merchant,” remedies under the ■ Uniform Commercial Code were exclusive. See id. at 8. We held that a church run by lay committees was not ordinarily involved in commercial activity and that it took something more than hiring an architectural consultant, as Church of Nativity did in this case, to bring a noncommercial entity within the meaning of the Uniform Commercial Code’s definition of “merchant.” See id. at 7-8. We observed that the CFA is not expressly limited to individual consumers and has not been interpreted that way by the courts, thus it “applies to transactions involving all consumers and, in this case, was violated by the making of false promises.” Id. at 8. We concluded the transaction was “an ordinary consumer transaction within the scope [of the Act].” Id.

In Boubelik, we interpreted the CFA more narrowly where the plaintiffs, who obtained a loan from a bank, alleged that the bank violated the CFA by defrauding them in connection with the loan. 553 N.W.2d at 402. The issue before us was whether the term “merchandise” or “services” included bank loans. See Boubelik, 553 N.W.2d at 402. We held that the legislature could have specifically referred to loans within the definition of “merchandise” but did not do so, thus bank loans did not fall within the meaning of “services” under the CFA. See id. at 403. We reasoned, “[p]ublic policy not only includes protection for consumers who enter certain transactions in an unequal bargaining position, but it also includes the freedom for sophisticated parties to borrow and to invest moneys subject to certain risks.” Id. Less than a year later in 1997, the legislature amended the definition of “merchandise” to include loans.

Appellant and amicus first note that the CFA is to be interpreted liberally and if its breadth is narrowed it should be by legislative enactment, not by judicial decision. Appellant argues that Minn.Stat. § 325F.68, subd. 3 (1998), defines “person” to include corporations and other organizations and “does not expressly limit its application to individual consumers,” Church of Nativity, 491 N.W.2d at 8, citing the parish in Church of Nativity and Blue Cross and Blue Shield of Minnesota in Philip Morris, Inc. as precedent. Appellant similarly points out that the CFA applies to single transactions, as in Boube-lik and Church of Nativity, and that we have never held that the fraud under the CFA must be broadly disseminated. Appellant observes that no language in the CFA limits “persons” to those buying for personal use only and such a reading excludes consumers who can be the primary target of consumer fraud, a sole proprietor purchasing a first computer, for example. Finally, appellant argues that the purpose of the CFA is to level out the unequal bargaining power in marketplace transactions.

Respondent contends that the legislature did not intend the CFA to apply to non-consumer commercial transactions, as here, where appellant was a veteran of the restaurant business, had substantial bargaining power in the transaction and clearly purchased the restaurant for commercial, not personal, use. Respondent reads the use of “others” in the CFA language “with the intent that others rely thereon” to require the fraud to be perpetrated on others in addition to the plaintiff. Minn. Stat. § 325F.69, subd. 1.

We agree with appellant that the better reasoning leads to the conclusion that the transaction involving the sale of the Chin Yung restaurant is covered by the CFA. Appellant purchased the restaurant business not for the purpose of reselling it, but rather to sell restaurant services. His status was therefore more that of a consumer of the restaurant business than a buyer of a business for resale. See, e.g., Boubelik, 553 N.W.2d at 395 (noting plaintiffs under the CFA obtained bank loan for the purpose of investing in a bar and restaurant). While the CFA does not define “consumer,” the legislative history clearly indicates that the CFA was intended to protect a broad, though not limitless, range of individuals from fraudulent and deceptive trade practices, and our decisions have also recognized the breadth of its coverage. See Gary L. Wilson & Jason A. Gillmer, Minnesota’s Tobacco Case: Recovering Damages Without Individual Proof of Reliance Under Minnesota’s Consumer Protection Statutes, 25 Wm. Mitchell L.Rev. 567, 576 (1999) (“Minnesota’s consumer protection statutes were enacted to protect Minnesota consumers from unlawful and fraudulent business practices * * * and are broadly construed to protect the consuming public.”). Thus, viewing appellant as a “consumer” under the CFA does not push application of the statute onto new ground.

We are also on established ground in holding that even though the unlawful practices respondent engaged in here were in the context of an isolated one-on-one transaction, coverage under the CFA may still be afforded. In Church of Nativity we held that the transaction fell under the CFA where an individual purchaser was involved in a single transaction without regard to whether the fraudulent representations were disseminated to other consumers. 491 N.W.2d at 8 (plaintiff was a parish contracting to reroof school and convent). We attach no importance to the statutory reference to the term “others” in “with the intent that others rely thereon,” as it most reasonably can only mean that the fraudulent conduct must not have been committed in a vacuum-it must have been intended to deceive someone. See Minn.Stat. § 645.08(2) (1998) (“[t]he singular includes the plural; and the plural, the singular”). We conclude that the unlawful practices here, occurring while engaging in a one-on-one transaction for the purchase of a business for operation and not resale, fall within the trade practices prohibited by section 325F.69, subdivision 1.

11. The Private Attorney General Statute

The attorney general is provided broad statutory authority under Minn.Stat. § 8.31 to investigate violations of law regarding unlawful business practices barred by a variety of statutory prohibitions including the Consumer Fraud Act, and to seek injunctive relief and civil penalties on behalf of the state. See MinmStat. § 8.31, subds. 1, 3 (1998). The Private AG Statute, section 8.31, subdivision 3a, further provides that “any person injured by a violation” of the laws entrusted to the attorney general to investigate and enforce may recover damages together with costs and attorney fees: “In addition to the remedies otherwise provided by law, any person injured by a violation of * * * [Minn.Stat. § 325F.69] may bring a civil action and recover damages, together with costs and disbursements, including costs of investigation and reasonable attorney’s fees * * Minn.Stat. § 8.31, subd. 3a.

The sweeping remedies of the Private AG Statute have raised concern about how broadly the legislature intended the statute to be applied, particularly as it relates to common law fraud actions and the recovery of attorney fees. See, e.g., Church of Nativity, 491 N.W.2d at 10 (Simonett, J., concurring in part and dissenting in part) (expressing concern that a consumer can claim attorney fees for “almost any commercial transaction that fails”). A brief history of the passage of the Private AG Statute sheds light on this issue and reveals the statutory purpose in providing incentives to injured private parties to enforce the unlawful business practices statutes as a substitute for the attorney general. On March 8, 1973, Senator Winston Borden, author of the bill, in a hearing before the Labor and Commerce Committee, stated that its goal was to:

allow the individual person to bring a civil action for the damages he sustained * * * it’s a great means of private enforcement. It’s simply impossible for the Attorney General’s Office to investigate and prosecute every act of consumer fraud in this state. * * * [And] if a[n] individual could bring an action, he can do some of the prosecuting, he can do some of the enforcing, he can provide some of the protection for himself and others that the Attorney General’s Office * * * can not do today * * *.

Similarly, on March 30, 1973, Representative Sieben stated that the purpose of the Private AG Statute is to stop the “unscrupulous ⅜ ⅝ ⅞ businessman who makes * * * false and deceptive ads,” and with its adoption “a private citizen may take the person to court * * * when the citizen has been defrauded and he may recover damages plus reasonable attorney’s fees or injunctive relief.” Representative Sie-ben also referred to the importance of providing an incentive to consumers to privately enforce the fraudulent business practices laws: “an operator who can * * * rip off a large number of citizens, and cease operating * * * may likely be able to do so with little threat of legal action. More stringent remedies are therefore needed. * * * [This bill] provides a route for private recovery for the victims of consumer fraud.”

The Private AG Statute thus advances the legislature’s intent to prevent fraudulent representations and deceptive practices with regard to consumer products by offering an incentive for defrauded consumers to bring claims in lieu of the attorney general. In Church of Nativity we acknowledged the legislative intent to “eliminate financial barriers to the vindication of a plaintiffs rights * * * and to provide incentive for counsel to act as private attorney general.” 491 N.W.2d at 8 (quoting Liess v. Lindemyer, 354 N.W.2d 556, 558 (Minn.App.1984)). We commented:

Nativity’s pursuit of a remedy has involved much time and labor; it has been difficult, lengthy and expensive. If there are no attorney fees awarded in this case, Nativity will spend virtually all of its damage award paying its attorneys. The private attorney general statute was intended to cover just this type of case.

Id. at 8 (footnote omitted). Thus we held that the parish was entitled to the benefits of the Private AG Statute. See id.

The court of appeals has expressed reservations about broadening the scope of section 8.31 similar to those of Justice Simonett’s dissent in Church of Nativity and has required a showing of public benefit to award attorney fees under the Private AG Statute. For example, in Liess, the court held that in considering a claim for an award of attorney fees under section 8.31, ordinarily a district court must take into account the nature, extent and outcome of the attorney’s work and in addition, it “must take into account the degree to which the public interest is advanced by the suit, * * * otherwise, ‘every artful counsel could dress up his dog bite case’ to come under an attorney’s fees statute.” 354 N.W.2d at 558 (quoting Boland v. City of Rapid City, 315 N.W.2d 496, 503 (S.D.1982)) (citations omitted). Similarly, in Wexler v. Brothers Entertainment Group, the court held that “[w]hen awarding attorney fees under the private attorney general statute, the trial court must consider the public interest policies underlying the statute.” 457 N.W.2d 218, 222-23 (Minn.App.1990); see also Untiedt v. Grand Lab., Inc., Nos. C4-94-772, CO-94-851, 1994 WL 714308, at *3 (Minn.App. Dec. 27, 1994) (citing the rule in Liess and holding that because the trial court found that the cause of action would advance the public interest, the trial court considered the appropriate factors).

Appellant argues that the aim of the Private AG Statute is to encourage victims of fraud to bring claims and nowhere does it provide that attorney fees are contingent upon demonstrating that a cause of action creates a public benefit. Respondent contends that the Private AG Statute should not cover fraud arising from private disputes but only those where the fraud has the potential’ to deceive more than the single claimant and the lawsuit benefits the public! Respondent emphasizes that the purpose of the Private AG Statute is to protect public, not private, interests and that attorney fees should be awarded only if the record reflects proper consideration of the policies underlying the statute.

A determination of the scope of the private remedies provision in the Private AG Statute must begin with the recognition that it was adopted by the legislature in 1973 as part of the statutory charter for the duties and responsibilities of the attorney general and provides a reward to private parties for uncovering and bringing to a halt unfair, deceptive and fraudulent business practices, functions that, to that point, had been the responsibility of the attorney general. Since the Private AG Statute grants private citizens the right to act as a “private” attorney general, the role and duties of the attorney general with respect to enforcing the fraudulent business practices laws must define the limits of the private claimant under the statute. Minnesota Statutes § 8.01 (1998) provides that the attorney general shall appear for the state in civil lawsuits “whenever, in the attorney general’s opinion, the interests of the state require it.” Minn.Stat. § 8.01 In Slezak v. Ousdigian, we held that the attorney general:

may institute, conduct, and maintain all such actions and proceedings as he deems necessary for the enforcement of the laws of the state, the preservation of order, and the protection of public rights. * ⅜ * He has the authority to institute in a district court a civil suit in the name of the state whenever the interests of the state so require.

260 Minn. 303, 308, 110 N.W.2d 1, 5. (1961) (citation omitted). The duty of the attorney general’s office, and thus the purpose of any statute granting private citizens authority to bring a lawsuit in lieu of the attorney general, is the protection of public rights and the preservation of the interests of the state.

The interest of the legislature in creating a supplemental force of private enforcement to address unlawful trade practices is clear from the testimony at committee hearings, but it is equally clear that the sweep of the, statute can be no broader than the source, of its authority- that of the attorney general-whose duties are to protect public rights ifi the interest of the state. Conversely, it is not the responsibility of the attorney general to protect private or individual interests independent of a public purpose. See, e.g., Humphrey v. McLaren, 402 N.W.2d 535, 543 (Minn.1987) (stating that the attorney general “has for a client the public, * * * [t]hus, a government litigator must take positions with the common public good in •mind, unlike the private practitioner who seeks vindication of a particular result for a particular client”).

We find further support for our holding that public interest must be demonstrated to state a claim under the Private AG Statute based on our conclusion that the legislature could not have intended to sweep every private dispute based on fraud, and falling within the CFA, into a statute where attorney fees and additional costs and expenses would be awarded, because to do so would substantially alter a fundamental principle of law deeply ingrained in our common law jurisprudence-that each party bears his own attorney fees in the absence of a statutory or contractual exception. See Church of Nativity, 491 N.W.2d at 10 (Simonett, J., concurring in part and dissenting in part); see also Barr/Nelson, Inc. v. Tonto’s, Inc., 336 N.W.2d 46, 53 (Minn.1983) (“We have long held that attorney fees are not recoverable in litigation unless there is a specific contract permitting or a statute authorizing such recovery.”). We have for as long presumed that statutes are consistent with the common law, and if a statute abrogates the common law, the abrogation must be by express wording or necessary implication. See In re Shetsky, 239 Minn. 463, 469, 60 N.W.2d 40, 45 (1953). We decline to construe legislative intent to abrogate the common law with regard to the attorney fees provision in the absence of a clear purpose to do so.

Based on these considerations we hold that the Private AG Statute applies only to those claimants who demonstrate that their cause of action benefits the public. We believe that this conclusion is consistent with the history and purpose of the office of the attorney general to prosecute misrepresentations involving only matters of public interest. Appellant was defrauded in a single one-on-one transaction in which the fraudulent misrepresentation, while evincing reprehensible conduct, was made only to appellant. A successful prosecution of his fraud claim does not advance state interests and enforcement has no public benefit, and is not a claim that could be considered to be within the duties and responsibilities of the attorney general to investigate and enjoin.

Affirmed in part and reversed in part.

PAGE, Justice

(concurring in part, dissenting in part).

I respectfully dissent. I agree with that portion of the court’s opinion holding that the Consumer Fraud Act applies to a cause of action brought by a plaintiff who was defrauded in an isolated one-on-one purchase of a restaurant for the purpose of selling restaurant services. I disagree, however, with that part of the opinion holding that Minn.Stat. § 8.31, subd. 3a (1998), does not permit an award of attorney fees in cases arising under the Consumer Fraud Act unless the plaintiff can demonstrate that the cause of action has a public benefit. “[When] the words of a statute are clear and free from ambiguity, we have no right to construe or interpret the statute’s language.” Tuma v. Commissioner of Econ. Sec., 386 N.W.2d 702, 706 (Minn.1986). “Our duty in such a case is to give effect to the statute’s plain meaning.” Id. The words the legislature used in Minn.Stat. § 8.31, subd. 3a are clear and free from ambiguity. Subdivision 3a, in relevant part, reads:

In addition to the remedies otherwise provided by law, any person injured by a violation of any of the laws referred to in subdivision 1 may bring a civil action and recover damages, together with costs and disbursements, including costs of investigation and reasonable attorney’s fees, and receive other equitable relief as determined by the court.

Minn.Stat. § 8.31, subd. 3a (emphasis added).

Had the legislature intended to limit the scope of section 8.31, subdivision 3a, to those causes of action that have a public benefit, it could have easily done so. Whether for good or for ill, by the plain words of the statute, it did not. This court is not authorized nor is it this court’s role to read into a statute that which the legislature, by its plain language, has left out.

GILBERT, Justice

(dissenting).

I join in the concurrence and dissent of Justice Page.

GILBERT, Justice

(concurring in part, dissenting in part).

I concur with the majority’s holding that Minn.Stat. § 325F.69, subd. 1 (1998) (CFA) applies to an individual consumer involved in a one-on-one transaction. However, I respectfully dissent from the majority’s conclusion that Minn.Stat. § 8.31, subd. 3a (1998), the private attorney general statute, is not applicable to this transaction. I agree with Justice Page’s dissent in its entirety, including the point that the majority artificially engrafts a “public benefit” requirement onto an unambiguous statute. I write separately, however, to emphasize my disagreement with the majority’s holding that bringing an action to prosecute conduct, which we hold falls under the prohibitions of the CFA, would not serve the public interest. Further, I conclude that the majority’s holding is an unreasonable result in that section 8.31, subdivision 3a, explicitly incorporates section 325F.69 within its purview. We have no legal authority to read out of a statute that which the legislature has explicitly included.

Even if the majority is correct in finding some implicit requirement of public benefit in the private attorney general statute, I disagree with the majority’s resolution of the fact question at the appellate level. As the majority notes, respondent sold this same restaurant to another purchaser later the same day after respondent fraudulently induced appellant to nullify the contract of sale. It is quite possible that enforcing the fraudulent business laws against this particular respondent will have a benefit to more than appellant-purchaser. This fact question should be remanded to the district court. I, would, however, interpret this newly discovered “public benefit” requirement to include private enforcement of the consumer protection laws.

The majority holds that although the CFA is intended to protect even the consumer defrauded in an “isolated one-on-one transaction,” and even if that same consumer successfully brings suit under the CFA for that unlawful conduct, he is not entitled to reasonable attorney fees under section 8.31, subdivision 3a, because such a transaction does not enhance the public interest generally. That holding is contrary to the purpose of section 8.31, subdivision 3a, which, as the majority acknowledges, was intended to provide incentives for injured consumers to privately enforce the fraudulent business practices laws by eliminating financial barriers to prosecution. See Church of Nativity of Our Lord v. WatPro, Inc., 491 N.W.2d 1, 8 (Minn.1992). When “any person” is injured by a violation of those laws and successfully prosecutes the violator, that consumer has benefited the public by attempting to prevent the fraudulent business conduct of that particular defendant and alleviating, economically and in terms of time and preparation for investigation and litigation, the burden on the attorney general’s office to enforce the laws. As we said in Church of Nativity, a case involving an individual purchaser involved in a single transaction, “pursuit of a remedy has involved much time and labor; it has been difficult, lengthy and expensive. If there are no attorney fees awarded in this case, [the consumer] will spend virtually all of its damage award paying its attorneys. The private attorney general statute was intended to cover just this type of case.” 491 N.W.2d at 8. It creates an unreasonable result to hold that enforcement of the state’s laws does not benefit the public generally.

We hold that appellant is a person injured by a violation of section 325F.69, subdivision 1. Therefore, the clear, unambiguous language of section 8.31, subdivision 3a, dictates that he is entitled to attorney fees. Accordingly, I would reverse the court of appeals and remand to the district court for a determination of appropriate attorney fees and investigative costs.

      . The exact dates of the next few meetings are not clear from the record but they took place between approximately June 10, 1996 and June 19, 1996.

      .After taking copies of the documents home appellant noticed that the promissory note listed the restaurant price as $70,000, not $90,000 and after he notified respondent she revised the promissory note to reflect the $20,000 down payment.

      . Respondent later made the $10,000 check payable to her son and the $5,000 check payable to herself.

      . Respondent testified that she stopped payment on the check when she went to the restaurant on December 24, 1996, and appellant had taken all of the inventory and left the restaurant a mess.

      . The court also held that appellant was not entitled to the return of rent payments because the rent was set at the fair market value for Shakopee, and that he was not entitled to reimbursement for credit card advances and loans from relatives because those items were not reasonable expenditures in mitigating damages.

      . Act of May 23, 1963, ch. 842, § 1, 1963 Minn. Laws 1533, 1534.

      . Special Message, 63rd Minn. Leg., Apr. 23, 1963 (audio tape) (comments of Governor Rolvaag).

      . In 1996 the word "loan” was not included in section 325F.68 definitions. See Minn.Stat. § 325F.68, subd. 2 (1996).

      . Justices Gardebring and Page dissented on the ground that the CFA was broad enough to include loans. See Boubelik, 553 N.W.2d at 405 (Gardebring, J. and Page, J., dissenting).

        .See Act of May 16, Í997, ch. 157, § 60, 1997 Minn. Laws 965, 996.

      . We held that the transaction was not covered by the CFA because loans were not included in the CFA at that time. See Boubelik, 553 N.W.2d at 403. However, neither party disputed that the plaintiffs, as applicants for a loan to be invested in a business, could bring suit under the CFA.

      . The court of appeals held similarly in Yost v. Millhouse. 373 N.W.2d 826, 831-32 (Minn.App.1985) (holding individual purchasing two horses was covered by the CFA).

      . Hearing on S.F. 819, S. Comm. Labor and Commerce, 68th Minn. Leg., Mar. 8, 1973 (audio tape) (comments of Sen. Borden, Senate sponsor of the bill).

      . Hearing on H.F. 733, H. Comm. Commerce and Econ. Dev., 68th Minn. Leg., Mar. 30, 1973 (audio tape) (comments of Rep. Sie-ben).

      . Id.

      . The dissent in Church of Nativity agreed with the majority that the cause of action fell under the CFA but noted that the distributor and supplier of the faulty roofing material used to reroof the parish and school also requested attorney fees and the trial court denied their request, reasoning that they were "not the types of consumers the statute was designed to protect.” 491 N.W.2d at 10-11 (Simonett, J., concurring in part and dissenting in part).
      The dissent disagreed with the majority’s award of attorney fees to plaintiffs under the Private AG Statute, noting that the Private AG Statute is directed not at isolated fraud but "at deceptive practices to which the consumer public is prey,” and expressing concern that "enterprising plaintiffs, understandably interested in recovering investigation costs and attorney fees, may expand the [Private AG Statute] beyond its intended scope.” Id. at 10 (Simonett, J., concurring in part and dissenting in part) (citing Liess, 354 N.W.2d at 558). Concluding that "an attorney fee award is not intended for so-called 'private' disputes,” the dissent suggested a four-part test for awarding attorney fees:
      (1) the plaintiff must be a consumer, who is
      (2) injured by an actionable fraud (such as in a common law action for a false pretense, a false promise or a misrepresentation), and
      (3) the fraud must have the potential to deceive and ensnare members of the consumer public other than just the plaintiff, so that
      (4) plaintiff's lawsuit has been of benefit to the public.

        Id. at 10-11.

      . The court held that the factors set forth in State v. Paulson, 290 Minn. 371, 373, 188 N.W.2d 424, 426 (1971), were appropriate considerations, specifically: "all relevant circumstances, including the time and labor required, the nature and difficulty of the responsibility assumed; the amount involved and the results obtained; the fees customarily charged for similar legal services; the experience, reputation, and ability of counsel; and the fee arrangement existing between counsel and the client.” Id.; Liess, 354 N.W.2d at 558.

      . Some federal courts also emphasize the degree the public interest is advanced by the suit. In Martin v. Hancock, the court held that "the 'private attorney general' concept * * * ¿s basecj on rationale that counsel fees should be awarded by the court when the legal services have provided a benefit to a class of persons, not just the particular litigant.” 466 F.Supp. 454, 456 (D.Minn.1979). Similarly, in Cooperman v. R.G. Barry Corp., the court held that where the fraud related to an employment relationship with defendant, "[s]uch a broad reading of the [Act] would render it applicable to any contract remotely related to the ultimate sale of merchandise. It is unlikely that the Legislature intended the [Act] to have such broad application.” 775 F.Supp. 1211, 1214 (D.Minn.1991).
      Other state courts have similarly held that a public purpose must be demonstrated. In Lightfoot v. MacDonald, the Washington Supreme Court held that its Consumer Protection Act, modeled after the Federal Trade Commission Act, provides no remedy for private wrongs because "the community’s interest in seeing that private rights are respected is not a sufficient public interest.” 86 Wash.2d 331, 544 P.2d 88, 90, 92-93 (1976). An Illinois court of appeals held that the Consumer Fraud Act of Illinois did not apply in basic breach of contract cases and stated the relevant issue to be "whether the alleged conduct * * * implicates consumer protection concerns.” Brody v. Finch Univ. of Health Sciences, 298 Ill.App.3d 146, 232 Ill.Dec. 419, 698 N.E.2d 257, 268-69 (1998) (quoting Lake County Grading Co. v. Advance Mechanical Contractors, Inc., 275 Ill.App.3d 452, 211 Ill. Dec. 299, 654 N.E.2d 1109, 1115 (1995)).

      . See Act of May 3, 1973, ch. 155, § 4, 1973 Minn. Laws 294, 297.

      . The relevant portion of the statute provides:
      The attorney general shall appear for the state in all causes in the supreme and federal courts wherein the state is directly interested; also in all civil causes of like nature in all other courts of the state whenever, in the attorney general’s opinion, the interests of the state require it.
      Minn.Stat. § 8.01.

      .See, for example, Representative Sieben’s comment that the Private AG Statute is intended to stop those who “rip off a large number of citizens.” Hearing on H.F. 773, H. Comm. Commerce and Econ. Dev., 68th Minn. Leg., Mar. 30, 1973 (audio tape) (comments of Rep. Sieben).

      . The dissent makes the point that if the legislature intended to require a showing of public benefit under the Private AG Statute then it would have said so, but our analysis is based on the statutory authority of the attorney general. If the attorney general is not authorized to commence a proceeding because. it would not result in a public benefit, see McLaren, 402 N.W.2d at 543, then a claimant under the Private AG Statute is similarly constrained.

      . This policy has been reflected in court of appeals decisions where the court has used a public benefit analysis to determine whether to award attorney fees under the Private AG Statute, see, e.g., Untiedt, 1994 WL 714308, at *3; Wexler, 457 N.W.2d at 222-23; Liess, 354 N.W.2d at 558, and the dissent in Church of Nativity in some sense validated the lower courts’ method of awarding attorney fees, 491 N.W.2d at 10-11 (Simonett, J., concurring in part and dissenting in part).

      . Further, the award of investigative costs acknowledges this public interest, as fruits of a successful investigation in a matter of public interest, would be available to others and the attorney general; investigation of a private dispute however, even if successful in uncovering a fraudulent business practice, would be of benefit only to the private party defrauded.

      . In Church of Nativity we affirmed the award of attorney fees holding that the Private AG Statute was "intended to cover just this type of case.” 491 N.W.2d at 8. We did not engage in analysis as to public benefit and no evidence was adduced as to whether the church's claim provided a public benefit. To the extent that Church of Nativity could be construed to permit recovery under the Private AG Statute without proof of public benefit, it is overruled.

      . Appellant also requests prejudgment interest in the amount of $1,265.40. We generally do not consider matters not argued and considered by the court below. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn.1988). The trial court did not address this issue and the court of appeals specifically declined to consider it because the trial court did not. We also deny appellant’s request to consider this issue.