author: DORIS O. HUSPENI, Judge

text:
    STATE of Minnesota, Respondent, v. Derrick Eugene BRADLEY, Appellant.
    No. C3-00-1907.
    Court of Appeals of Minnesota.
    June 5, 2001.
    Review Denied Aug. 15, 2001.

      Mike Hatch, Attorney General, St. Paul, MN; and Amy Klobuchar, Hennepin County Attorney, Michael K. Walz, Assistant County Attorney, Minneapolis, MN, for respondent.
    John M. Stuart, State Public Defender, Theodora K Gaitas, Assistant Public Defender, Minneapolis, MN, for appellant.
    Considered and decided by HALBROOKS, Presiding Judge, LANSING and HUSPENI, Judges.
   OPINION

DORIS O. HUSPENI, Judge

Upon revocation of his probation, appellant’s request for jail credit for time spent in a private residential treatment facility as a condition of probation was denied by the district court, on the grounds that Minnesota Sentencing Guidelines do not allow credit when probation time is spent in a treatment facility. Appellant argues that the decision of the district court constitutes a denial of equal protection under the law. Because there is a rational basis for granting jail credit to offenders who receive treatment while in state correctional facilities but denying it to offenders who receive treatment at private residential facilities, we affirm.

FACTS

Appellant Derrick Eugene Bradley was charged by juvenile delinquency petition with attempted second-degree murder, a violation of Minn.Stat. § 609.17 (1994) and Minn.Stat. § 609.19 (1994). The petition alleged that appellant, age 17 at the time of the offense, shot another man in south Minneapolis. Pursuant to a plea agreement, the state amended the charge to first-degree assault, a violation of Minn. Stat. § 609.221 (1994).

Appellant entered a guilty plea and the district court found him delinquent as an extended jurisdiction juvenile pursuant to Minn.Stat. § 260.126 (1994). The conviction carried a presumptive 86-month sentence. In accordance with the plea agreement, the district court imposed a stayed, 150-month sentence, and placed appellant on probation until age. 21. As a condition of probation, the district court ordered appellant to complete a program at the Colorado Boys Ranch in La Junta, Colorado. Appellant completed an 18-month program in Colorado, but upon his return to Minnesota, he violated his probation by testing positive for cocaine use. The district court revoked appellant’s probation and imposed the 150-month adult sentence. This court affirmed the revocation on appeal; the supreme court denied further review.

Appellant subsequently moved for jail credit for the 18 months he spent at the Colorado Boys Ranch. Appellant did not argue denial of equal protection as the basis for his motion, nor did he request a hearing on the motion. The district court, in denying jail credit, concluded that the Minnesota Sentencing Guidelines provide that credit for time spent in confinement as a condition of probation is limited to time spent in jails, workhouses, and regional correctional facilities, and that credit is not to be given for time spent in residential treatment facilities.

Appellant challenges the district court order as a denial of equal protection under the United States and Minnesota Constitutions.

ISSUE

Did the district court violate appellant’s right to equal protection by denying his motion for jail credit for time he spent in residential treatment as a condition of probation?

ANALYSIS

We may review constitutional is: sues for the first time on appeal when required in the interests of justice, when the parties have adequate briefing time, and when the issue is implied in the district court. Tischendorf v. Tischendorf 321 N.W.2d 405, 410 (Minn.1982). Although appellant did not raise his equal protection argument in the district court, we believe the conditions described in Tis-chendorf have been met here, and elect to review the issue.

“The granting of jail credit is not discretionary with the trial court.” State v. Cameron, 603 N.W.2d 847, 848 (Minn.App.1999) (citation omitted). Awards of jail credit are governed by principles of fairness and equity and must be determined on a case-by-case basis. State v. Dulski, 363 N.W.2d 307, 310 (Minn.1985). A defendant has the burden of establishing that he is entitled to jail credit for a specific period of time. State v. Willis, 376 N.W.2d 427, 428 n. 1 (Minn.1985).

A defendant is entitled to jail credit for “all time spent in custody in connection with the offense or behavioral incident for which sentence is imposed.” Minn.R.Crim. P. 27.03, subd. 4(B). Caselaw and sentencing guidelines provide, however, that an offender is not entitled to jail credit for time spent in a treatment facility as a condition of probation. See State v. Peterson, 359 N.W.2d 708, 710 (Minn.App.1984) (holding defendant who received treatment in a state hospital was not entitled to jail credit for that time), review denied (Minn.Mar. 13, 1985); Minn. Sent. Guidelines III.C.3 (credit for confinement as a condition of stayed sentence “is limited to time spent in jails, workhouses, and regional correctional facilities”); Minn. Sent. Guidelines cmt. Ill .C.04 (“Credit should not be extended for time spent in residential treatment facilities or on electric home monitoring as a condition of a stay of imposition or stay of execution.”); see also State v. Bonafide, 457 N.W.2d 211, 215 (Minn.App.1990) (holding that jail credit may be granted for presentence custodial period spent under a civil commitment order at state security hospital and observing that denying credit for time relating to probationary conditions is not inconsistent with that holding). Although treatment may be available both as part of confinement in state correctional facilities and as part of a private residential treatment program, under the sentencing guidelines, an offender is only entitled to jail credit for the former. Appellant, denied jail credit for time spent in treatment, argues that this disparity constitutes a violation of his equal protection rights provided to him under the United States and Minnesota Constitutions.

The equal protection guarantees contained in U.S. Const, amend. XIV and Minn. Const, art. 1, § 2, require that persons similarly situated be treated alike unless a rational basis exists for discriminating among them. State v. Russell, 477 N.W.2d 886, 888-89 (Minn.1991). The United States Supreme Court has held that legislative distinctions made between defendants for the purpose of determining eligibility for jail credit requires an inquiry into “whether the challenged distinction rationally furthers some legitimate, articulated state purpose.” McGinnis v. Royster, 410 U.S. 263, 270, 93 S.Ct. 1055, 1059, 35 L.Ed.2d 282 (1973).

In Royster, prisoners who had been incarcerated prior to sentence were granted jail credit against a subsequent prison sentence, but were denied the right to earn “good time” credit for pre-sentence incarceration. Id. at 266, 93 S.Ct. at 1058. Prisoners who were fortunate enough to obtain bail prior to sentencing, on the contrary, earned “good time” for the entire period of their incarceration. Id. This distinction was challenged as a denial of equal protection. Id. at 268, 93 S.Ct. at 1058. The United States Supreme Court, in rejecting the constitutional challenge, stated:

[A]t state prisons a serious rehabilitative program exists. County jails, on the other hand, serve primarily as detention centers. * * * [Granting of good-time credit toward parole eligibility takes into account a prisoner’s rehabilitative performance. * * * As the statute and regulations contemplate state evaluation of an inmate’s progress toward rehabilitation, in awarding good time, it is reasonable not to award such time for pretrial detention in a county jail where no systematic rehabilitative programs exist and where the prisoner’s conduct and performance are not even observed and evaluated by the responsible state prison officials. * * * Where there is no evaluation by state officials and little or no rehabilitative participation for anyone to evaluate, there is a rational justification for declining to give good-time credit.

Id. at 271-73, 93 S.Ct. at 1060-61 (citations and quotations omitted).

While the court in Royster concluded that the distinction between awarding good-time credit to those incarcerated in state prisons after sentencing while denying good-time credit to those incarcerated in detention facilities prior to sentencing rationally furthered some legislatively articulated state purpose, id. at 270, 93 S.Ct. at 1059, Minnesota law applies a “more stringent” rational basis standard. Russell, 477 N.W.2d at 889. The court in Russell, in addressing the differing standards under the United States and Minnesota Constitutions, stated:

This court has not been consistent in explaining whether the rational basis standard under Minnesota law, although articulated differently, is identical to the federal standard or represents a less deferential standard under the Minnesota Constitution. What has been consistent, however, is that in the cases where we have applied what may be characterized as the Minnesota rational basis analysis, we have been unwilling to hypothesize a rational basis to justify a classification, as the more deferential federal standard requires. Instead, we have required a reasonable connection between the actual, and not just the theoretical, effect of the challenged classification and the statutory goals.

Id (citations omitted).

Thus, here we must answer the question of whether there is a reasonable connection between the actual, not theoretical, effect of the challenged classification (granting jail credit for time spent in programs under the authority of the commissioner of corrections while denying jail credit for time spent in residential treatment) and the statutory goals. We conclude that the classification meets the more stringent Minnesota rational basis test.

The Minnesota Sentencing Guidelines explain that

In order to promote the goals of the sentencing guidelines, it is important to ensure that jail credit is consistently applied to reflect all time spent in custody in connection with the offense.
The Commission also believes that jail credit should be awarded for time spent in custody as a condition of a stay of imposition or stay of execution when the stay is revoked and the offender is committed to the Commissioner of Corrections. The primary purpose of imprisonment is punishment, and the punishment imposed should be proportional to the severity of the conviction offense and the criminal history of the offender.

Minn. Sent. Guidelines cmt. III.C.01, .04.

The guidelines establish that an offender committed to state custody, including custody as a condition of probation, is imprisoned as punishment for the offense. The guidelines provide also, however, that jail credit

should not be extended for time spent in residential treatment facilities or on electronic monitoring as a condition of a stay of imposition or stay of execution.

Minn. Sent. Guidelines cmt. III.C.04.

In determining that such a distinction is constitutionally permissible, we conclude that residential treatment programs, although involving a restriction of liberty and commonly a condition of probation, are not punishment for the offense committed, but are an alternative to punishment. Were jail credit granted for residential treatment, the punishment for identical offenses would be disparate. A residential treatment facility program participant whose probation is revoked and sentence executed would ultimately serve less time, or incur less “punishment,” in connection with the offense than an otherwise identical offender who spent probationary time in state custody. Also, on a commonsense, practical basis, it could be argued that awarding jail credit for time spent in a treatment program would tend to diminish the incentive to succeed in treatment. Those who failed in treatment (the only individuals who would ever raise the jail credit issue we address here) would be assured that when the “need” arose, the time spent in “failed” treatment would be considered as time spent in “punishment” and fully credited against a prison sentence. Every incentive, it seems to us, should be invoked to make treatment successful; failure should not be rewarded.

The purpose of the sentencing guidelines is to establish rational and consistent sentencing standards which reduce sentencing disparity and ensure that sanctions following conviction of a felony are proportional to the severity of the offense of conviction and the extent of the offender’s criminal history.

Minn. Sent. Guidelines I (Statement of Purpose and Principles).

The guidelines rule against granting jail credit for time spent in residential treatment states a legitimate state purpose: “rational and consistent sentencing.” Id.

Appellant argues that granting jail credit to juveniles who “happen to get committed to Red Wing [Correctional Facility] for treatment” while denying it to juveniles who “are committed to other facilities” is not reasonably connected to the state’s interest in rational and consistent sentencing. Appellant contends that this position finds support in State v. Bowman, No. C7-98-1892, 1999 WL 153788 (Minn.App. Mar.23, 1999), an unpublished opinion in which this court held that a juvenile was entitled to jail credit for time spent in the Minnesota Department of Corrections’ Red Wing Correctional Facility because the facility was operated by the state.

As an unpublished decision, Bowman has no precedential value. Minn.Stat. § 480A.08, subd. 3 (2000). More importantly, nothing in the record suggests that appellant and the defendant in Bowman were similarly situated. Appellant may not have been an appropriate candidate for the Red Wing Correctional Facility’s programs at the time of his original placement. See Minn. R. Juv. P. 15.05, subd. 2(B)(1) (requiring district courts to make the least-restrictive placement necessary to restore law-abiding behavior).

It is true that the degree of restraint at the Red Wing Correctional Facility and the Colorado Boys Ranch may share some similarities. The record shows that both the Red Wing Correctional Facility and the Colorado Boys Ranch allow for participation in programs off-site for participants who successfully complete certain phases of treatment. In other words, neither facility is strictly “lock-down.” Cf. State v. Wilkinson, 539 N.W.2d 249, 252-53 (Minn.App.1995) (holding electronic home monitoring is not time spent in custody because there is a difference in restrictions between electronic home monitoring and jail).

Evidence demonstrates, however, that the programs appellant compares are qualitatively different. The Red Wing Correctional Facility’s Prepare Program serves “serious and chronic juvenile offenders.” The Colorado Boys Ranch “admits youth, ages 12 through 18, with severe emotional and behavioral problems.” Red Wing residents are in the custody of the Commissioner of Corrections as punishment related to the offense, and treatment is afforded to offenders “to assist residents in returning to the community without further involvement in the justice system.” The Colorado Boys Ranch residence programs are not punishment, and they treat a variety of emotional and psychological problems that may or may not include delinquent behavior.

We believe that the more rigid restrictions imposed as punishment in state correctional facilities differ significantly from the restrictions deemed necessary as part of a successful residential treatment program. Inmates who, as a condition of probation, serve time and receive treatment in state correctional facilities are subject to evaluation by state officials. Offenders who receive treatment in a residential treatment program may not be similarly restricted, are not subject to evaluation by state officials, and, significantly, are not receiving treatment in conjunction with punishment for the offense committed, but instead are receiving treatment as an alternative to punishment.

The differences between facilities that treat and those that punish supply the necessary reasonable connection between the state’s interest in consistent sentencing and the actual effect of treating appellant’s motion for jail credit differently from a motion brought by a juvenile offender who served time at the Red Wing Correctional Facility as a condition of probation. Accordingly, we hold that the district court’s decision to deny appellant jail credit for the 18 months of treatment he received at the Colorado Boys Ranch does not constitute a denial of equal protection under the law.

DECISION

The district court did not deny appellant equal protection under the law by denying his motion for jail credit for probationary time spent in a private residential treatment facility.

Affirmed.

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

      . "Good time” is used to determine a minimum parole date.


source: Caselaw Access Project

author: RANDALL, Judge

license: Public Domain

text:
    John L. KIPP, et al., Appellants, v. Thomas SWENO, Respondent.
    No. C3-01-55.
    Court of Appeals of Minnesota.
    June 19, 2001.
    Review Denied Aug. 22, 2001.

      Paul L. Ratelle, Daniel J. McGarry, Fa-byanske, Westra & Hart, P.A., Minneapolis, MN, (for appellant).
    David C. Anastasi, Christopher Fer-reira, Anastasi & Associates, P.A., Stillwa-ter, MN, (for respondent).
    Considered and decided by RANDALL, Presiding Judge, TOUSSAINT, Chief Judge, and G. BARRY ANDERSON, Judge.
   OPINION

RANDALL, Judge

In postjudgment proceedings, appellants sought to enforce a judgment obtained against respondent by levying on property owned by respondent and his wife. Respondent claimed the homestead exemption precluded a forced sale of the subject property. The district court agreed. On appeal, appellants allege the district court erred in (a) not ordering that portion of respondent’s property exceeding the value of the homestead exemption to be severed from the interest of respondent and his wife and sold under MinmStat. § 550.175, subd. 4 (2000) to satisfy appellants’ judgment; and (b) denying appellants’ request for an independent appraisal of respondent’s property. We reverse and remand.

FACTS

In the fall of 1983, appellants John L. Kipp and Christine A. Kipp (the Kipps) hired respondent Thomas Sweno (Sweno) to construct a new home for them in Still-water. Sweno began construction in December 1983. In January 1987, after Sweno ceased work on the Kipps’ home, the Kipps commenced an action in Washington County District Court alleging inter alia that Sweno defrauded them with regard to the actual cost of construction of their new home. A jury found Sweno guilty of fraud and liable to the Kipps for $165,000. On December 2, 1988, judgment was entered in the amount of $168,633, which included all accrued interest. On July 23, 1999, the Kipps’ judgment against Sweno was renewed for $264,186 with interest. See Minn.Stat. § 541.04 (1998) (stating action on judgment or decree cannot be maintained unless begun within ten years after entry of judgment).

Sweno and his wife, Colleen J. Sweno, own real property consisting of ten lots and a home in Washington County as joint tenants. The property is encumbered by three mortgages totaling roughly $75,000. On January 13, 2000, Washington County issued a writ of execution for the Kipp’ judgment, in the amount of $269,341, which included all interest to date. On March 13, 2000, Sweno was served with the writ of execution, along with a notice of sheriffs execution sale for Sweno’s real property.

On March 20, 2000, Sweno served and filed a certificate of ownership and designation of homestead claiming an “undivided one-half interest” in the subject property. Sweno’s counsel notified the sheriff that the $200,000 statutory exemption exceeded Sweno’s one-half interest in the property. The property, based on Washington County’s 2000 property tax records, was valued at $309,900.

The Kipps challenged Sweno’s valuation of the homestead property under Minn. Stat. § 550.175, subd. 4(b) (2000) by asking the district court to reject Sweno’s valuation of the property; seeking an independent, fair-market appraisal of the property; and allowing the execution sale to go forward to the extent that the fair-market value of the property exceeded the $200,000 exemption.

Sweno filed a cross-motion in district court seeking to discharge the Kipps’ judgment lien filed on record against the subject property. Colleen Sweno filed a memorandum of law as an interested party challenging the Kipps’ motion. On November 16, 2000, the district court denied both parties’ motions and concluded that Sweno’s one-half interest in the property ($154,500) is exempt under the homestead exemption and cannot be reached by judgment creditors. The district court, citing Minn.Stat. § 500.19, subd. 5 (2000), also concluded that the property could not be severed because it is a joint tenancy with right of survivorship. Finally, the district court stated that the Kipps’

lien has no force or effect against Thomas or Colleen Sweno if and until the Swenos sell, gift, assign, convey (or dispose of their property in any way), or if Colleen predeceases Thomas.

This appeal followed.

ISSUES

1. Did the district court err in granting respondent a homestead exemption in an amount greater than that allowed by Minnesota statute, thereby not allowing the execution sale to take place?

2. Did the district court err in denying appellants an independent fair-market appraisal of respondent’s property?

3. Did appellants perfect their judgment so that it attached as a lien on respondent’s homestead property?

4. Are appellants entitled to the proceeds of any sale of respondent’s homestead property before one year after the sale?

ANALYSIS

Standard of Review

The question of whether Sweno and his wife can each claim an individual exemption under Minn.Stat. § 510.02 (2000) for property held in joint tenancy is a matter of statutory interpretation. Statutory interpretation is a legal issue that appellate courts review de novo. Brookfield Trade Ctr., Inc. v. County of Ramsey, 584 N.W.2d 390, 393 (Minn.1998). The value determination of the homestead property, however, is a question of fact, which this court will not reverse unless clearly erroneous. Minn. R. Civ., Pro. 52.01; see also First Trust Co. v. Union Depot Place Ltd. Partnership, 476 N.W.2d 178, 181 (Minn.App.1991) (stating standard of review for findings based on documentary evidence), review denied (Minn. Dec. 13, 1991).

I. Homestead Exemption

The Kipps argue that the district court erred by allowing both Sweno and his wife individual $200,000 homestead exemptions, which is double the unitary homestead exemption of $200,000 allowed by statute. The Kipps next assert that the district court’s conclusion that because Sweno’s “one-half’ interest in the property did not exceed $200,000, there is no basis for an execution sale, is a misinterpretation of Minnesota law. We agree.

A homestead is defined as a house owed and occupied by a debtor and the debtor’s family and the land accompanying the house. MinmStat. § 510.01 (2000). The homestead exemption is limited by value and area as follows:

If the homestead is within the laid out or platted portion of a city, its area must not exceed one-half of an acre. The value of the homestead exemption, whether the exemption is claimed jointly or individually, may not exceed $200,000,

Minn.Stat. § 510.02 (emphasis added). The statute plainly denotes a single, indivisible, homestead exemption of $200,000.

On the next issue of severing the joint tenancy, respondent misinterpreted the law and read too much into the statute and cases he cited. While generally a spouse cannot convey an interest in property without the written consent of the other spouse, it is not an absolute protection. See MinmStat. § 507.02 (2000) (stating conveyance of homestead may occur through severance of joint tenancy pursuant to section 500.19). MinmStat. § 500.19, subd. 5 (2000) unequivocally states that a severance of joint tenancy in real property is legally effective if “the severance is ordered by a court of competent jurisdiction.”

Further, if real property is to be sold on execution to satisfy a judgment, and the debtor claims that the real property is exempt under the homestead statute, the debtor may request that the homestead be sold and redeemed separately from the non-exempt property. Minn.Stat. § 550.175, subd. 1 (2000). The debtor must then designate the homestead property to be sold separately and estimate its value. Id., subd. 3 (2000). If the district court then determines that the claimed homestead property exceeds in value the amount of the homestead exemption ($200,000), or the court finds that division of the property would result in material injury, “the court shall order the sale of the entire property.” Id., subd. 4(d) (2000). The debtor shall then receive “the amount of the homestead exemption and apply the balance of the proceeds of the sale on the execution.” Id.

Where statutory language is plain and unambiguous, the court must give it its plain meaning. Phelps v. Commonwealth Land Title Ins. Co., 537 N.W.2d 271, 274 (Minn.1995). The language of § 510.02, when read in conjunction with § 510.01, is unambiguous. A homestead is considered to be that place where the debtor and his family live. There cannot be more than one homestead for a property, whether held in one spouse’s name or both. The language of § 510.02 states that the homestead exemption is $200,000, whether the exemption is claimed jointly or individually. The law is clear that only one exemption up to $200,000 in equity can be claimed for a homestead.

Here, the district court found that the subject property was valued at $309,900 and then assigned Sweno a “$154,500 interest” in the property. The district court allowed the Swenos a total exemption of $400,000, indicating that each spouse had a separate right to the statutory $200,000 homestead exemption. Then the district court reasoned that because Sweno’s individual exemption exceeded his “half value” of $154,500, the entire property was protected from any lien of the Kipps. We conclude that the district court improperly analyzed Sweno’s property interest.

Sweno argues that his spouse’s interest and joint-tenancy ownership trump the Kipps’ lien, and for authority cites O’Hagan v. United States, 86 F.3d 776 (8th Cir.1996). Contrary to Sweno’s argument, O’Hagan supports our decision. In O’Ha-gan, the government seized Mr. O’Hagan’s homestead property for unpaid taxes. Id. at 778. Mr. O’Hagan owned the property with his wife as joint tenants with right of survivorship. Id. Mrs. O’Hagan was not assessed with the tax liability. Id. The court determined that the government could not force a sale of the husband’s property interest because the wife would suffer irreparable injury from the forced sale because she had a right superior to that of the government in the husband’s right to use and occupy the property. Id. at 781-83. But the court did find that the government could sell the husband’s sur-vivorship interest in the property. Id. at 783-84. The court noted that their decision was consistent with United States v. Rodgers, 461 U.S. 677, 702-03 n. 31, 103 S.Ct. 2132, 2147-48 n. 31, 76 L.Ed.2d 236 (1983), because O’Hagan was an administrative lien proceeding rather than a judicial lien. Id. at 784 n. 10. A judicial lien allows a sale of homestead property to satisfy the tax liability of one of the joint tenants pursuant to section 7403 of the Internal Revenue Code. Id. This case is a judicial lien proceeding rather than an administrative lien. We conclude there can be a forced sale to satisfy the judgment against Sweno under Minnesota law subject to Sweno’s one homestead exemption.

Under Sweno’s theory, each joint tenant (as a spouse) has an individual $200,000 exemption and under no circumstances can one spouse, or anyone for that matter, sever the tenancy without consent of the other spouse. Sweno’s spouse purports to “withhold her consent” from any severance' of the joint tenancy. This flies in the face of the plain language of the statute limiting the homestead exemption to $200,000 equity per homestead, whether individual or joint. Under Sweno’s interpretation, the spouse without a judgment against him or her could manipulate and fashion an unlimited homestead exemption by “withholding consent.” Minnesota changed its homestead exemption in 1993 from an unlimited amount to $200,000. Numerous other states have value-limited homestead exemptions. See, e.g,, Alaska Stat. § 09.38.010 (Michie 2000) (exemption limitation of $54,000); Cal.Civ.Proc.Code § 704.730 (West 2000) (exemption limitation ranging from $50,000 to $125,000); Colo.Rev.Stat. § 38-41-201 (2000) (exemption limitation of $45,000 “actual cash value in excess of’ liens or encumbrances). The legislature has made it clear that in Minnesota individuals are not granted an unlimited homestead exemption.

A homestead is allotted an exemption up to $200,000 in equity. See Baumann v. Chaska Bldg. Ctr., Inc., 621 N.W.2d 795, 798-99 (Minn.App.2001) (stating $200,000 exemption refers to debtor’s equity in property). The Kipps concede that their judgment lien is subordinate to the valid mortgages in first, second, and fourth position, totaling roughly $75,000, and Sweno’s $200,000 homestead exemption. But the Kipps do have the right under Minnesota law to levy on any and all parts of the equity in a debtor’s homestead after valid mortgages and the homestead exemption have been honored. The district court improperly allowed Sweno a homestead exemption and protection from creditors over and above what is allowed under Minn. Stat. § 510.02.

II. Property Appraisal

The Kipps argue that they have the right to an independent fair-market appraisal of the property under Minn.Stat. § 550.175, subd. 4(b) (2000), because they were dissatisfied with Sweno’s homestead valuation. The district court refused the Kipps’ request for an independent appraisal of the property. The court reasoned that there was no need for an independent appraisal because Mrs. Sweno had not consented to the sale, and thus, there was not going to be any execution of judgment against the property. This was plain error.

Minn.Stat. § 550.175, subd. 4(b), states that if the creditor is dissatisfied with the property designation or the debtor’s valuation of the property, upon proper motion to the district court,

the executing creditor is entitled to a court approved designation of the homestead and a court determination of value. The court shall either approve the debt- or’s designation or cause the property to be surveyed and order a homestead designation * * * and require an appraisal of fair market value, as applicable.

Here, the district court relied solely upon Sweno’s 2000 property tax statement to determine the value of the subject property. No other evidence for valuation was used. Property tax records can be evidence of valuation, but are not determinative to the exclusion of other evidence. A reading of the statute shows the court has discretion whether to accept the debt- or’s designation, but the court is required to order an appraisal of fair-market value if the creditor is dissatisfied with the debt- or’s valuation. Therefore, the Kipps timely objected to Sweno’s valuation of his property. The Kipps are entitled to an independent valuation of Sweno’s property as a matter of law.

When assessing the value of the property, the appraiser, once appointed, must look at all the property and consider Minn. Stat. § 550.175, subd. 3, which discusses conformity with local zoning and indicates that the property be “compact so that it does not unreasonably affect the value of the remaining property.” The appraiser must consider the ten lake lots. A determination must be made whether the ten lake lots are separate entities and divisible, and can be sold individually, separate from a reasonable designation by the Swenos of their homestead building and land. If the lake lots cannot be divided from the homestead, the district court has the power and the authority to order a sale of all the property. As the Kipps agree, this would only happen if a fair objective appraisal shows that the value of all Sweno’s homestead lots combined exceeds the mortgages of record plus $200,000 (Sweno’s permissible homestead exemption).

III. Perfected Lien

Sweno argues that the Kipps’ judgment does not attach as a lien on his homestead property, claiming that the judgment was “never perfected.” He states that on homestead property, “perfection” can only occur if the owner’s homestead rights are lost. He argues that because his and his wife’s homestead rights were never lost, the Kipps cannot levy upon the homestead property and force the conveyance. We disagree.

At the time of docketing and filing of an affidavit, every judgment becomes a lien against the judgment debtor’s real property. Minn.Stat. § 548.09, subd. 1 (2000). Sweno does not challenge any procedural filing requirements. He simply claims that the Kipps’ judgment was never perfected, does not attach, and, thus, cannot be used to execute. The record shows that the Kipps have fulfilled all statutory requirements. We conclude that Sweno’s argument on this issue has no merit.

IV. Proceeds of Sale

Sweno argues that if the execution sale goes forward, the Kipps would not be entitled to any of the proceeds of the sale for one year. Specifically, Sweno refers to Minn.Stat. § 510.07 (2000), which states:

The owner may- sell and convey the homestead without subjecting it, or the proceeds of such sale for the period of one year after sale, to any judgment or debt from which it was exempt in the owner’s hands, except that the proceeds of the sale are not exempt from a judgment or debt for a court ordered child support or maintenance obligation in arrears.

The Kipps properly point out that their intention is only to levy on any excess over the $200,000 exemption and existing liens of record.

Minn.Stat. § 510.07 only refers to the homesteaded or exempt portion of the property. The Kipps, like all creditors, are not barred from the non-exempt proceeds of a homestead sale for this one-year period.

DECISION

The district court improperly granted respondent a separate and distinct homestead exemption of $200,000 in addition to what his spouse could claim. The district court also improperly concluded that as long as the debtor spouse did not consent to the homestead being sold, it could never be the subject of a valid judgment lien regardless of the value of the homestead compared to the amount of the debt.

As a matter of law, appellants are entitled to an independent appraisal of the entire property. Should the fair value of all the property the debtor claims as his homestead exceed the value of the existing mortgages plus the $200,00 homestead exemption, the district court has the power and the jurisdiction to order a foreclosure sale, and appellants have an immediate right to share in the surplus proceeds up to the amount of their judgment lien.

Reversed and remanded.

      . There is no dispute that the subject property is within the platted portion of the City of Lake Elmo, and is therefore subject to the $200,000 exemption limitation.

      . The Kipps challenge the district court's valuation of the property, which is discussed later. The district court’s valuation was based solely on its assessed value for real estate tax purposes.

      . The right of a judgment debtor to argue that his claim of homestead gives him certain protection against general liens, meaning those other than purchase money mortgages and mechanic's liens, does not mean that those liens do not legally exist. It simply means that there may be some legal defense against certain valid liens.


author: G. BARRY ANDERSON, Judge.

text:
    Gina M. BENASSI, Appellant, v. BACK & NECK PAIN CLINIC, INC., Respondent, Randy S. Miland, individually, Respondent.
    No. C9-01-75.
    Court of Appeals of Minnesota.
    July 10, 2001.

      Stephen W. Cooper, Stacey R. Everson, the Cooper Law Firm, Minneapolis, for appellant.
    James T. Hynes, James T. Hynes, PLLC, St. Paul, for respondents.
    Steven P. Carlson, St. Anthony, for respondent bankruptcy trustee.
    Considered and decided by RANDALL, P.J., TOUSSAINT, C.J., and G. BARRY ANDERSON, J.
   OPINION

G. BARRY ANDERSON, Judge.

Appellant Gina Benassi challenges the district court’s grant of summary judgment dismissing her sexual harassment claims under the Minnesota Human Rights Act against respondent Randy Miland and the Back & Neck Pain Clinic, Inc., arguing that the evidence shows respondent engaged in sexual harassment in violation of Minn.Stat. § 363.01, subd. 41 (2000). Appellant also challenges the district court’s grant of summary judgment on respondent’s counterclaim for the return of an engagement ring. We affirm in part, reverse in part, and remand.

FACTS

Respondent Randy Miland is a chiropractor and the sole shareholder of the Back & Neck Pain Clinic, Inc., a Minnesota corporation. Appellant Gina Benassi, a long-time patient of respondent, worked at the clinic, first as an intern while in chiropractic school, and then as a licensed chiropractor. Respondent directly supervised appellant during her employment. Respondent and appellant began a romantic relationship, and, in 1990, the parties became engaged to be married. Respondent gave appellant an engagement ring purchased for $24,000.

While working at the clinic, appellant initially received modest pay, but over time appellant’s annual salary increased to more than $100,000. According to respondent, appellant’s salary had been elevated beyond her market value so that she could independently qualify for a new home loan; the Federal Bureau of Investigation was looking into respondent’s business practices which, according to respondent, may have affected his ability to obtain a loan. Appellant qualified for the loan and the parties moved into the new house in 1993.

Appellant alleged that she observed a distinct change in respondent’s behavior beginning in 1993: respondent came home late at night under the influence of alcohol “with lipstick on his face and clothes,” and a woman named Heidi began calling the clinic asking for respondent several times a day. Appellant claims that respondent broke off the engagement in October 1994.

Despite the failed engagement, the parties continued to share living quarters for nearly two more years. While living together, both appellant and respondent, at different times, attempted to resurrect the romantic relationship. Appellant asserts that respondent instructed clinic staff members to encourage her to give respondent another chance. Appellant refused. The relationship between the parties then soured. Appellant alleges that in November 1995, respondent told appellant that she should “lay down and spread [her] legs and earn [her] money.” Appellant claims that when she began to date a patient of the clinic, respondent threatened to terminate her employment, criticized appellant’s boyfriend to clinic staff, instructed staff at the clinic to “be mean” to appellant, and disrupted appellant’s patient flow by preventing patients from seeing her.

In January 1997, appellant and her boyfriend vacationed in Jamaica. Upon her return, respondent changed appellant’s salary structure. Instead of receiving an annual base salary of approximately $100,000, appellant’s productivity determined her income level. This change reduced appellant’s annual salary by approximately 75%. Appellant contends that, in July 1997, she confronted respondent with proof that (1) new patients were directed away from appellant; (2) referral patients were required to see other staff; and (3) respondent did not allow appellant to see his patients in his absence although she was a senior staff member. According to appellant, as a result of the confrontation, she was placed on suspension. Approximately one month later, respondent terminated appellant’s employment.

Respondent alleged that although it was difficult to work with appellant after the failed relationship, her employment termination was a legitimate business decision. As support, respondent presented evidence showing that for the years 1996 and 1997, respondent maintained an 80.4% and 70% caseload, respectively, while appellant maintained a 12% and 19% caseload, respectively, and that clinic expenses increased substantially between 1993 and 1997 due to salary and contract-labor obligations while the clinic’s total sales remained about the same.

Appellant filed suit against respondent and the clinic, alleging marital status discrimination, sex discrimination, and tortious interference with employment contract. Appellant also alleged that respondent aided and abetted the clinic in discriminating against her. Respondent filed a counterclaim for replevin of the engagement ring. The district court heard the parties’ motions for summary judgment, granted summary judgment in favor of respondent, and ordered appellant to surrender her engagement ring or its value equivalent after finding it to be a conditional gift made in contemplation of marriage. By appeal dated January 12, 2001, appellant now challenges the district court’s grant of summary judgment to respondent on her sexual-harassment claims, and on respondent’s replevin - claim for the engagement ring.

After this appeal was filed, the district court filed an amended order, which required that appellant pay $24,000 to respondent’s bankruptcy trustee instead of tendering the ring to respondent. But upon learning of this appeal, the district court vacated the amended order.

ISSUES

I. Did the district court err by granting summary judgment in favor of respondent, thereby dismissing appellant’s sexual-harassment claims?

II. Did the district court err by granting summary judgment to respondent on his counterclaim for the return of the engagement ring?

ANALYSIS

On appeal from summary judgment, this court examines whether there are any genuine issues of material fact and whether the district court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990); see Minn. R. Civ. P. 56.03 (setting forth district court standard for summary judgment). Although appellate courts view the evidence in the light most favorable to the party against whom judgment was granted, summary judgment is appropriate against a party who fails to establish the existence of an element essential to its case. Lloyd v. In Home Health, Inc., 523 N.W.2d 2, 3 (Minn.App.1994). Appellant must show a prima facie case of sexual harassment by proving the “bare essentials of discrimination or harassment, merely sufficient evidence to create the inference of unequal treatment.” Bersie v. Zycad Corp., 399 N.W.2d 141, 145 (Minn.App.1987) (citation and quotations omitted).

I.

Appellant contends the district court erred in granting summary judgment to respondent, thereby dismissing her sexual harassment claim brought under the Minnesota Human Rights Act (MHRA), Minn.Stat. §§ 363.01-.20 (2000). The MHRA provides that it is an unfair employment practice for an employer “because of * * * sex * * * to discriminate against a person with respect to hiring, tenure, compensation, terms, upgrading, conditions, facilities, or privileges of employment.” Minn.Stat. § 363.03, subd. l(2)(c) (2000). For purposes of sex discrimination, the term “discriminate” includes sexual harassment. Minn.Stat. § 363.01, subd. 14 (2000). Further, “sexual harassment,” as defined in the MHRA, includes unwelcome sexual advances, requests for sexual favors, sexually motivated physical contact or other verbal or physical conduct of a sexual nature when:

(1) submission to that conduct or communication is made a term or condition, either explicitly or implicitly, of obtaining employment * * *;
(2) submission to or rejection of that conduct or communication by an individual is used as a factor in decisions affecting that individual’s employment * * *; or
(3) that conduct or communication has the purpose or effect of substantially interfering with an individual’s employment * * *, or creating an intimidating, hostile, or offensive employment * * * environment; and in the case of employment, the employer knows or should know of the existence of the harassment and fails to take timely and appropriate action.

Minn.Stat. § 363.01, subd. 41 (2000). It is well established that Minnesota courts look to principles and interpretations of federal Title VII cases when construing the MHRA. Costilla v. State, 571 N.W.2d 587, 591 (Minn.App.1997), review denied (Minn. Jan. 28, 1998).

When analyzing whether a violation of Minn.Stat. § 363.01, subd. 41, occurred, the district court and both parties referred to claims brought under clauses (1) and (2) as “quid pro quo” harassment and those brought under clause (3) as “hostile work environment” harassment. The United States Supreme Court, however, has expressed dissatisfaction with the use of these terms. The Supreme Court stated:

The terms quid pro quo and hostile work environment are helpful, perhaps, in making a rough demarcation between cases in which threats are carried out and those where they are not or are absent altogether, but beyond this are of limited utility.

Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 751, 118 S.Ct. 2257, 2264, 141 L.Ed.2d 633 (1998). The Supreme Court concluded that sexual-harassment claims must be evaluated in reference to applicable statutory factors — in this case, those set forth in Minn.Stat. § 363.01, subd. 41— and not merely by categorizing claims as quid pro quo or hostile work environment. Id.

A. MinnStat. § 363.01, subd. 4-1(1) and (2)

Appellant challenges the district court’s grant of summary judgment to respondent on her claim under Minn.Stat. § 363.01, subd. 41(1) and (2). A violation under clauses (1) and (2) occurs when a superior forces “an employee to choose between acquiescing to a superior’s sexual demands or forfeiting an employment benefit such as promotion, raise, or continued employment * * In re Discipline of Peters, 428 N.W.2d 375, 378 (Minn.1988).

Minnesota courts use the McDonnell Douglas framework to determine whether a violation of the MHRA has occurred. Hubbard v. United Press Int'l, Inc., 330 N.W.2d 428, 441 (Minn.1983) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)). The employee has the initial burden of establishing a prima facie case of discrimination. Id. at 442. To establish a prima facie violation, a claimant must show:

(1) she is a member of a protected class;
(2) she was subjected to unwelcome sexual harassment in the form of sexual advances or requests for sexual favors;
(3) the harassment was based on sex; and (4) her submission to the unwelcome advances was an express or implied condition for receiving job benefits or her refusal to submit resulted in a tangible job detriment.

Cram v. Lamson & Sessions Co., 49 F.3d 466, 473 (8th Cir.1995) (citation omitted); Grozdanich v. Leisure Hills Health Ctr., Inc., 25 F.Supp.2d 953, 966 (D.Minn.1998).

Appellant is a member of a protected class because she is a woman. Minn.Stat. § 363.03, subd. 1(1) (2000). Appellant argues that she met the second element of her prima facie case by testifying that respondent suggested she “lay down and spread [her] legs and earn [her] money.” Although the alleged comment is of a sexual nature, it is unclear whether it should be viewed as a sexual advance. The unquestionably offensive and vulgar comment does seem to request sexual favors. Because the comment suggests a sexual act in return for money from the employer, and because we must view the evidence in the light most favorable to appellant’s case, we conclude that this evidence satisfies the second element, namely, proof that appellant was subjected to unwelcome sexual harassment in the form of a request for a sexual favor.

But appellant must also show that the submission to the unwelcome attention was an express or implied' condition for receiving job benefits, or that her refusal to submit resulted in a tangible job detriment. Cram, 49 F.3d at 473. Appellant suggests that her reduction in salary and subsequent employment termination were results of her refusal to revive the relationship with respondent. The record reveals that respondent’s alleged comment was made in November 1995, when appellant and respondent were living together. Appellant continued to live with respondent until April 1996, and her salary was not reduced until January 1997. Appellant continued to work for respondent until September 1997. Due to the significant lapse in time between respondent’s alleged vulgar and offensive comment and appellant’s subsequent salary reduction and termination, we conclude that appellant failed to meet the fourth element of her prima facie case. Therefore, the district court did not err in granting respondent summary judgment on this issue. See Lloyd, 523 N.W.2d at 3 (stating summary judgment is appropriate against a party who fails to establish the existence of an element essential to its case).

B. Minn.Stat. § S63.01, subd. 11(3)

Appellant challenges the district court’s grant of summary judgment to respondent on her claim under Minn.Stat. § 363.01, subd. 41(3). The elements of a prima facie violation under clause (3) are: (1) the employee belongs to a protected group; (2) the employee was subjected to unwelcome sexual harassment; (3) the harassment was based on sex; (4) the harassment affected a term, condition, or privilege of employment; and (5) the employer knew or should have known of the harassment and failed to take timely and appropriate remedial action. Minn.Stat. § 363.01, subd. 41(3); Costilla, 571 N.W.2d at 595.

As stated above, Minnesota courts use the McDonnell Douglas framework to determine whether a violation of the MHRA has occurred. Hubbard, 330 N.W.2d at 441. The employee has the initial burden of establishing a prima facie case of discrimination. Id. at 442. The burden then shifts to the employer to articulate a legitimate and nondiscriminatory reason for the adverse employment action. Id. at 441-42 n. 12. If the employer does so, the burden shifts back to the employee to show that the employer’s proffered reason was a pretext for discrimination. Id. Under McDonnell Douglas, summary judgment is appropriate if an employee fails to present a prima facie case of employment discrimination. Albertson v. FMC Corp., 437 N.W.2d 113, 116 (Minn.App.1989). Summary judgment is also appropriate if a plaintiff, having established a prima facie case of discrimination, fails to provide evidence that the employer’s proffered reasons for its employment decision were a pretext for discrimination. Id.

We conclude that appellant met her prima facie burden of proving a violation of Minn.Stat. § 363.01, subd. 41(3). Respondent encouraged staff members to approach appellant and urge her to resume the relationship. When she did not, respondent instructed staff to “be mean” to appellant. When respondent learned of appellant’s new boyfriend, he threatened to fire her. Respondent criticized appellant’s boyfriend and prevented other patients from seeing appellant. And as discussed above, respondent made an offensive and vulgar comment to appellant.

Under McDonnell Douglas, the burden shifts to respondent to show a legitimate nondiscriminatory reason for the termination. Hubbard, 330 N.W.2d at 441-42 n. 12. Respondent contended that appellant did not work well with other staff members. Respondent also explained that his business costs increased substantially from 1993 to 1997 while business receipts did not. The evidence showed that during 1996 and 1997 respondent maintained an 80.4% and 70% caseload, respectively, while appellant maintained a 12% and 19% caseload, respectively. To offset rising business costs, respondent based appellant’s salary on productivity. We conclude that respondent set forth legitimate nondiscriminatory reasons for reducing appellant’s salary and terminating her employment.

Under McDonnell Douglas, the burden shifts back to the employee to show that the employer’s proffered reasons were pretextual. Id. at 441-42 n. 12. The proper scope of inquiry on the issue of pretext is limited to whether the employer gave an honest explanation of its behavior. Krenik v. County of LeSueur, 47 F.3d 953, 960 (8th Cir.1995). Appellant must establish that there is a question about whether the employer’s justification is pretextual that creates a genuine issue of material fact for trial. Geraci v. Eckankar, 526 N.W.2d 391, 396 (Minn.App.1995), review denied (Minn. Mar. 14, 1995).

An employee may show pretext

either directly by persuading the court that a discriminatory reason likely motivated the employer or indirectly by showing that the employer’s proffered explanation is unworthy of credence.

Sigurdson v. Isanti County, 386 N.W.2d 715, 720 (Minn.1986) (citation omitted); see also Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143, 120 S.Ct. 2097, 2106, 147 L.Ed.2d 105 (2000) (“plaintiff may attempt to establish that [she] was the victim of intentional discrimination by showing that the employer’s proffered explanation is unworthy of credence” (citation and quotation omitted)). Even if an employer has a legitimate reason for the discharge, an employee may nevertheless prevail if an illegitimate reason “more likely than not” motivated the discharge decision. Anderson v. Hunter, Keith, Marshall & Co., 417 N.W.2d 619, 627 (Minn.1988).

Respondent argues, and the district court concluded, that appellant’s termination resulted from legitimate business reasons. Although the evidence suggests that respondent had a legitimate business reason to terminate appellant’s employment, appellant has brought forth evidence alleging that respondent threatened to terminate her employment when learning she was dating someone else, reduced her salary after she returned from vacation -with her new boyfriend, criticized her boyfriend to clinic staff, instructed clinic staff to “be mean” to her, and disrupted her patient flow. Using the supreme court’s reasoning in Anderson, and viewing the evidence in the light most favorable to appellant, we conclude that appellant established a genuine issue of material fact sufficient to defeat summaiy judgment as to whether an illegitimate reason “more likely than not” motivated respondent’s decision to reduce appellant’s salary and terminate her employment. See id. (holding that employer cannot avoid liability for unlawful discrimination when the discharge from employment is based on an impermissible reason simply because it also offered other reasons that were not pretextual). Accordingly, we reverse the district court and remand this issue for trial.

C. Procedural Argument

Respondent argues that the sexual-harassment issues raised by appellant are not properly before this court because they were not pleaded in appellant’s complaint. We disagree. Appellant alleges sex discrimination in her complaint, and, as stated above, for purposes of sex discrimination, the term “discriminate” includes sexual harassment. Minn.Stat. § 363.01, subd. 14. Both appellant and respondent argued the issues of sexual harassment at the summary judgment hearing, and the district court’s order addressed appellant’s sexual-harassment claim. We find respondent’s argument that the issue of sexual harassment is not properly before this court to be without merit.

Respondent further alleges that he received appellant’s reply motion in opposition to summary judgment on the day of the summary judgment hearing, a violation of Minn. R. Gen. Pract. 115.03 (requiring a party replying to a motion to file its memorandum of law and supplementary documents with the court and serve these documents to opposing counsel as least three days prior to the hearing). The casual and flagrant disregard by appellant’s counsel of the rules under which our courts operate is disturbing, to say the least. But it is within the district court’s discretion to rule on the motion despite appellant’s late filings and, based on the discretion afforded the district court, we will not reverse here because of noncompliance with the rules even though another result is defensible. See Minn. R. Gen. Pract. 303.03(b); Swenson v. Swenson, 257 Minn. 431, 434, 101 N.W.2d 914, 917 (1960) (stating that where the interests of justice would be best served by relieving a party from formal compliance with a rule, the district court has the discretion to suspend or relax the rules).

II.

Appellant next argues that the district court erred in granting summary judgment to respondent on his replevin counterclaim for the engagement ring. It is undisputed that appellant and respondent both consider the ring in question to be an engagement ring given in contemplation of marriage.

The issue of returning an engagement ring upon the termination of an engagement is an issue of first impression for Minnesota appellate courts. Other jurisdictions considering the classification of an engagement ring gift have uniformly held that marriage is an implied condition of the transfer of title of the ring and that the gift does not become absolute until the marriage occurs. See Annotation, Rights in Respect of Engagement and Courtship Presents When Marriage Does Not Ensue, 44 ALR5th 1 § 2 (1996).

The Wisconsin Court of Appeals explained:

Where a gift of personal property is made with the intent to take effect irrevocably, and is fully executed by unconditional delivery, it is a valid gift inter vivos. Such a gift is absolute and, once made, cannot be revoked. A gift, however, may be conditioned on the performance of some act by the donee, and if the condition is not fulfilled the donor may recover the gift.
We find the conditional gift theory particularly appropriate when the contested property is an engagement ring. The inherent symbolism of this gift * * * forecloses the need to establish an express condition that marriage will ensue. Rather, the condition may be implied in fact or imposed by law in order to prevent unjust énrichment.

Brown v. Thomas, 127 Wis.2d 318, 379 N.W.2d 868, 872 (1985) (citations omitted). Similarly, the Ohio Court of Appeals determined that because an engagement ring is a symbol or pledge of a future marriage, it signifies that the one who wears it is engaged to marry the one who gave it to her. Lyle v. Durham, 16 Ohio App.3d 1, 473 N.E.2d 1216, 1218 (1984). Therefore, it is given in contemplation of the marriage and is a unique type of conditional gift. Id.

Other courts have reached a similar conclusion. Simonian v. Donoian, 96 Cal.App.2d 259, 215 P.2d 119, 120-21 (1950); White v. Finch, 3 Conn.Cir.Ct. 138, 209 A.2d 199, 201 (1964); Gill v. Shively, 320 So.2d 415, 417 (Fla.Ct.App. 4 Dist.1975); Vann v. Vehrs, 260 Ill.App.3d 648, 198 Ill.Dec. 640, 633 N.E.2d 102, 106 (1994); Harris v. Davis, 139 Ill.App.3d 1046, 94 Ill.Dec. 327, 487 N.E.2d 1204, 1206 (1986); Fierro v. Hoel, 465 N.W.2d 669, 671 (Iowa Ct.App.1990); Heiman v. Parrish, 262 Kan. 926, 942 P.2d 631, 634-35 (1997); Meyer v. Mitnick, 244 Mich.App. 697, 625 N.W.2d 136, 139 (2001); Aronow v. Silver, 223 N.J.Super. 344, 538 A.2d 851, 852-53 (Ch.1987); Mate v. Abrahams, 62 A.2d 754, 755 (N.J.County Ct.1948); Gagliardo v. Clemente, 180 A.D.2d 551, 551, 580 N.Y.S.2d 278 (N.Y.A.D.1992); Vigil v. Haber, 119 N.M. 9, 888 P.2d 455, 457 (1994); McIntire v. Raukhorst, 65 Ohio App.3d 728, 585 N.E.2d 456, 458 (1989); Wion v. Henderson, 24 Ohio App.3d 207, 494 N.E.2d 133, 133-34 (1985); Lindh v. Surman, 560 Pa. 1, 742 A.2d 643, 645 (1999); Spinnell v. Quigley, 56 Wash.App. 799, 785 P.2d 1149, 1151 (1990).

We find the reasoning of other jurisdictions on this issue persuasive and conclude that an engagement ring is a conditional gift given in contemplation of marriage.

Having determined an engagement ring is a conditional gift, we must next decide who, in this case, is entitled to the ring. There is a split of authority on this issue. The “majority” approach resolves the issue by determining ownership on the basis of fault. The “minority” approach applies a no-fault rule such that the ring would be returned to the donor after the engagement is broken, regardless of fault. The district court applied the minority approach and ordered appellant to return the ring or its value equivalent to respondent.

Appellant contends the district court erred by adopting a position that is in direct conflict with the majority rule. As support, appellant points to various state courts that have analyzed and accepted the majority, fault-based approach. First, appellant cites reasoning from the New Jersey Supreme Court:

On principle, an engagement ring is given, not alone as a symbol of the status of the two persons as engaged, the one to the other, but as a symbol or token of their pledge and agreement to marry. As such pledge or gift, the condition is implied that if both parties abandon the projected marriage, the sole cause of the gift, it should be returned. Similarly, if the woman, who has received the ring in token of her promise, unjustifiably breaks her promise, it should be returned.
When the converse situation occurs, and the giver of the ring, betokening his promise, violates his word, it would seem that a similar result should follow, i.e., he should lose, not gain, rights to the ring. In addition, had he not broken his promise, the marriage would follow, and the ring would become the wife’s absolutely. The man could not then recover the ring. The only difference between that situation, and the facts at bar, is that the man has broken his promise. How, on principle, can the courts aid him, under such circumstances, to regain a ring which he could not regain, had he kept his promise? No man should take advantage of his own wrong. Of course, were the breaking of the engagement to be justifiable, there would be no violation of the agreement legally, and a different result might follow.

Abrahams, 62 A.2d at 754-55 (quotation omitted).

Appellant also cites Spinnell v. Quigley to support her argument. The Spinnell court reasoned:

We agree with the cited authority that the donor of an engagement ring makes the gift upon the implied condition that if the contemplated marriage does not occur, the donee will return the ring. The donee should keep the ring only if the donor unjustifiably breaks the engagement.

785 P.2d at 1151. Appellant also asserts that the fault-based reasoning is proper given the inequity in this case. Appellant alleges that respondent’s “deeply-disturbing, dangerous and highly insulting behavior” mandates a determination of fault.

Respondent-bankruptcy trustee, on the other hand, argues that the district court properly reflected Minnesota public policy by adopting the no-fault reasoning. The no-fault approach compares a broken engagement to a broken marriage; since a no-fault divorce is the modern approach to a broken marriage, a no-fault approach to a broken engagement is equally appropriate.

Numerous states have abandoned the “majority,” fault-based approach in favor of the no-fault approach, including Iowa, Kansas, Michigan, New Jersey, New York, and Wisconsin. The Wisconsin Court of Appeals, explaining why it adopted the no-fault approach, stated:

[The question of, who is at fault, often becomes] lost in the murky depths of contradictory, acrimonious, and largely irrelevant testimony by disappointed couples, their relatives and friends.

Brown, 379 N.W.2d at 873. The Brown court, considering Wisconsin’s no-fault divorce law, concluded that the only relevant inquiry in conditional engagement gift cases is whether the condition under which the gift was made has failed. Id.

Similarly, the Kansas Supreme Court stated:

The ring which was given on the promise of a future marriage * * * after the engagement is broken, [is] a symbol of failed promises and hopes, hardly a treasured keepsake for its formerly betrothed wearer. Broken engagements engender hurt, pride, anger, and wounded egos. They do not ordinarily present the major questions of changes in lifestyles, standards of living, etc. that broken marriages involve. Yet the legislature has applied the no-fault principle to divorces on the grounds of public policy. ⅜ * * fauit for a broken engagement would do little but intensify the hurt feelings and delay the parties’ being able to get on with their lives.

Heiman, 942 P.2d at 638.

Turning the focus to Minnesota, our review of Minnesota public policy reveals that the Minnesota legislature has applied the no-fault principle to marriage dissolution. See Minn.Stat. § 518.06, subd. 1 (2000) (stating that “[a] dissolution of a marriage shall be granted * * * when the court finds that there has been an irretrievable breakdown of the marriage relationship”). The Minnesota legislature has also abolished civil actions for seduction and breach of promises to marry. See 1978 Minn. Laws ch. 515 (codified at Minn. Stat. § 553.01-03 (2000) and abolishing civil causes of action for breach of promise to marry, alienation of affections, criminal conversation, and seduction). The reasoning behind abolishing these civil causes of action is found in Minn.Stat. § 553.01 (2000), which provides:

Actions based upon alleged alienation of affections, criminal conversation, seduction and breach of contract to marry, have been subject to grave abuses, have caused intimidation and harassment, to innocent persons and have resulted in the perpetration of frauds. It is declared as the public policy of the state that the best interests of the people of the state will be served by the abolition of these causes of action.

Id. We conclude that because the Minnesota legislature has adopted a no-fault marriage dissolution law on the grounds of public policy, and has abolished civil actions based upon alleged alienation of affections, criminal conversation, seduction, and breach of contract to marry as against public policy, it is consistent for this court to adopt a no-fault approach to the return of an engagement ring. The alternative is for the courts to decide what “facts” justify breaking a promise to marry. Are mild differences in political views sufficient? What about vigorous differences in political positions? Do changes in a party’s religious or social beliefs constitute sufficient “fault” for ending an engagement? “Fault,” for these purposes, is a deceptively elusive concept; because it is impossible to fix with any certainty, it should not be given legal significance.

We conclude that the district court did not err in adopting the no-fault approach to this issue, and, consequently, we conclude that the district court did not err in awarding the engagement ring or its value equivalent to respondent.

DECISION

The district court did not err in granting summary judgment in favor of respondent on appellant’s claims under Minn. Stat § 363.01, subd. 41(1) and (2) (2000), because appellant failed to establish her pri-ma facie case. The district court did err, however, in granting summary judgment on appellant’s alleged violation of Minn. Stat. § 363.01, subd. 41(3) (2000), because appellant established that the question of whether an illegitimate reason “more likely than not” motivated respondent’s decision to terminate her employment creates a material fact issue for trial. The district court did not err in granting summary judgment on respondent’s replevin counterclaim for the engagement ring.

Affirmed in part, reversed in part, and remanded.

      . See e.g. Fierro, 465 N.W.2d at 672 (Iowa Ct.App.); Heiman, 262 Kan. 926, 942 P.2d at 635-38; Meyer, 244 Mich.App. 697, 625 N.W.2d at 139-40; Aronow, 223 N.J.Super. 344, 538 A.2d at 853-54 (Ch.); Gagliardo, 180 A.D.2d at 551, 580 N.Y.S.2d 278; Brown, 127 Wis.2d 318, 379 N.W.2d at 873-74.


author: GORDON W. SHUMAKER, Judge. LANSING, Judge

text:
    STATE of Minnesota, Respondent, v. Keith Edward MISQUADACE, Appellant.
    No. C4-01-81.
    Court of Appeals of Minnesota.
    July 10, 2001.

      Mike Hatch, Attorney General, Steven L. Schleicher, Assistant Attorney General, St. Paul, and Bradley C. Rhodes, Aitkin County Attorney, Aitkin, for respondent.
    John M. Stuart, State Public Defender, Michael F. Cromett, Assistant State Public Defender, Minneapolis, for appellant.
    Considered and decided by AMUNDSON, Presiding Judge, LANSING and SHUMAKER, Judges.
   OPINION

GORDON W. SHUMAKER, Judge.

In accordance with a plea agreement, the district court departed from the presumptive guidelines sentences, giving as the sole reason for the departure the appellant’s agreement. As to two of several sentences, appellant contends that the departures lacked substantial and compelling support. Because we hold that all departures from presumptive sentences, even those in plea bargains, must be supported by substantial and compelling reasons, we reverse the challenged sentences and remand to the district court.

FACTS

Alleging that Keith Edward Misquadace committed numerous crimes in Aitkin County from June 1995 through August 13, 1999, the state charged him in six separate court files with murder, criminal sexual conduct, burglary, felony theft, theft of a motor vehicle, criminal damage to property, introduction of contraband into a jail, fleeing a peace officer in a motor vehicle, underage drinking and driving, and failure to have a driver’s license in possession.

On September 27, 2000, while all charges were still pending, Misquadace entered a plea agreement that his attorney said would be a way to “clear the slate of all charges pending or that could be 'brought against Mr. Misquadace within Aitkin County.” Under the agreement, Misquadace was to plead guilty to an amended charge of first-degree manslaughter and to the original charges of third-degree burglary, fleeing a peace officer in a motor vehicle, and introduction of contraband into a jail. All other charges were to be dismissed. Misquadace also agreed to departures from the sentencing guidelines. For the manslaughter charge, there would be an upward durational departure from the presumptive executed sentence of 86 months to an executed statutory maximum of 180 months. Instead of the presumptive 12-month-and-one-day stayed sentence for the burglary, the court would depart by imposing an executed 60-month term. For the fleeing a peace officer charge, the court would depart by imposing an executed 13-month term, rather than a stayed 12-month-and-one-day term. And the court was to depart dura-tionally downward on the contraband charge from the presumptive sentence of 21 months to 13 months but the presumptively stayed sentence was to be executed. All the sentences were to be served consecutively to each other.

Misquadace entered Alford pleas to the charges that were not to be dismissed. He later moved to withdraw his pleas but the court denied his motion. With the exception of the departure for the manslaughter sentence, the only reason the district court gave in support of the other dispositional and durational departures was that Misquadace had agreed to them as part of his plea agreement.

As to only the burglary and contraband charges, Misquadace challenges the dura-tional departures and the consecutive sentences. He claims that because the district court failed to identify substantial and compelling reasons for the departures, he is entitled to presumptive, concurrent sentences for the burglary and contraband offenses.

The state argues that Misquadace’s plea agreement is a sufficient basis for all the departures and that, in any event, Misqua-dace cannot challenge only certain portions of a total “sentencing package.”

ISSUE

May a sentencing court depart from the presumptive sentence under the Minnesota Sentencing Guidelines solely because the defendant agrees to the departure?

ANALYSIS

The district court enjoys broad discretion when sentencing criminals. State v. Law, 620 N.W.2d 562, 564 (Minn.App.2000), review denied (Minn. Dec. 20, 2000). In sentencing felonies, that discretion is limited by the requirement that the “presumptive” sentence under the Minnesota Sentencing Guidelines is to be given unless the court expressly identifies substantial and compelling circumstances that would justify a departure from the presumptive sentence. Minn. Sent. Guidelines II.D.

“Although the sentencing guidelines are advisory to the district court, the court shall follow the procedures of the guidelines when it pronounces sentence.” Minn. Stat. § 244.09, subd. 5(2) (2000). And when it deviates from the guidelines, “the district court shall make written findings of fact as to the reasons for the departure * * * ” Minn.Stat. § 244.10, subd. 2 (2000).

Any sentencing departure that is not supported by substantial and compelling circumstances is an abuse of discretion and may not be allowed to stand. See Williams v. State, 361 N.W.2d 840, 844 (Minn.1985) (“If no reasons for departure are stated on the record at the time of sentencing, no departure will be allowed.”).

It is undisputed that the sole reason for the challenged departures was Mis-quadace’s agreement. The issue then is whether the district court may properly depart from the presumptive sentence solely because the defendant agrees to the departure.

We have held that “under present Minnesota law, the trial court must provide a written record stating the reason for the departure when there is a negotiated plea.” State v. Synnes, 454 N.W.2d 646, 647 (Minn.App.1990), review denied (Minn. June 26,1990). Six years later, our supreme court decided that a defendant may waive the guidelines sentence through a plea bargain. State v. Givens, 544 N.W.2d 774, 777 (Minn.1996). The state relies on Givens for its argument that Misquadace’s plea bargain is alone a sufficient basis for the departures.

Givens dealt with two questions: (1) Were there aggravating circumstances to justify the district court’s upward dura-tional departure? and (2) May a criminal defendant waive his “right” to be sentenced under the guidelines? The supreme court decided the first issue in the affirmative. Even though that decision was dispositive, the supreme court engaged in judicial dictum and addressed the second issue as well:

Although our holding on the departure factor could be dispositive of this case, we deem it appropriate to reach the other issue raised by the state * * *.

Id. at 776.

The supreme court began its discussion of the second issue with the assumption that a criminal defendant has a “right” to be sentenced to the relevant term prescribed by the Minnesota Sentencing Guidelines. Id. at 777. The court then observed that the law permits criminal defendants to waive virtually all of the constitutional, decisional, and statutory rights accorded them and concluded:

We see no reason not to allow a defendant to agree to a departure as part of a plea bargain with the prosecutor. Accordingly, today we hold that defendants may relinquish their right to be sentenced under the guidelines.

Id.

When Givens was decided, Minn.Stat. § 244.09' — the provision that requires courts to follow the guidelines — was silent as to whether or not a defendant had a “right” to a particular guidelines sentence. Minn.Stat. § 244.09 (1994). The Givens court acknowledged that statute. Givens, 544 N.W.2d at 774 n.l.

In 1997, the legislature amended section 244.09 by adding language that revealed the legislature’s intent not to treat a sentence under the guidelines as a right that accrues to a criminal defendant:

Sentencing pursuant to the sentencing guidelines is not a right that accrues to a person convicted of a felony; it is a procedure based on state public policy to maintain uniformity, proportionality, rationality, and predictability in sentencing.

Minn.Stat. § 244.09, subd. 5(2) (Supp. 1997).

Misquadace urges that the amendment of section 244.09 constitutes a legislative overruling of Givens. We do not need to address that argument, which invites an exploration of the separation of governmental powers. It is sufficient to note that Givens was decided under a law that has been changed. The current law, the one that we are compelled to apply, is that stated in the amended statute. The legislature has unequivocally demonstrated its intent through the amendment and there is no longer any reason to interpret the statute, as perhaps there was when Givens was decided. See State v. West, 285 Minn. 188, 197, 173 N.W.2d 468, 474 (1969) (“It is not for the courts to make, amend, or change the statutory law, but only to apply it. If its language embodies a definite meaning which involves no absurdity or contradiction, the statute is its own best expositor.”) (citation omitted). Furthermore, we are concerned about the implications of treating a prescribed guidelines sentence as a “right” owned by the defendant. If the prescribed sentence is a right that only the defendant may assert or waive, there could never be a judicial departure from the guidelines without the defendant’s consent, just as there can never be a waiver of the right to a jury trial without the defendant’s consent. Thus, we hold that, under current statutory law, a sentencing court must support any departure from the presumptive sentence with substantial and compelling reasons and it is not sufficient that the defendant merely accede to the departure in a plea bargain.

Misquadace invites us to modify his sentence without remanding to the district court. The state argues that the sentences at issue were part of a “package” and that a modification by this court allows Misquadace to retain all the benefits of the plea bargain but to escape a portion of the consequences he agreed to.

We agree with the state. This was an intricate plea agreement involving many crimes. The object of the agreement from the state’s point of view was to ensure a particular amount of time that Misquadace would serve in prison. From Misqua-dace’s standpoint, the object was to avoid a first-degree murder prosecution and to resolve the many other charges pending against him. Everything was interrelated and it would be inappropriate for this court to make piecemeal corrections without regard to the effect of the corrections on the plea bargain. Therefore, the sentences for the crimes of burglary in the third degree and introduction of contraband into a jail are reversed and the entire case is remanded to the district court for resentencing as may be appropriate under the Minnesota Sentencing Guidelines. Because the reversed sentences were part of a plea agreement, the district court may also consider motions to vacate or to modify the agreement and may reconsider its own decision to accept the plea agreement, with a view toward achieving a sentence, if possible, that is consistent with the guidelines and the spirit of the plea agreement.

Finally, we are concerned that the particular factual bases for the guilty pleas were not disclosed. Rather, with Misqua-dace’s agreement, the district court stated that it would rely on the “discovery” filed in court:

What I’m going to do, Mr. Misquadace, or what I would be doing, and I’ve already done it, is to look at, it’s called discovery, but it’s basically the police reports, the statements, and the evidence that’s been turned over to your attorney and that I know that you’ve had a chance to look over also. I’m going to use that as a basis to accept your guilty plea to the charge of manslaughter in the first degree.

The court did not mention discovery as it related to any other crime.

A guilty plea may not be accepted unless there exists a factual basis for concluding that the defendant actually committed an offense at least as serious as that to which he is pleading guilty. State v. Goulette, 258 N.W.2d 758, 760-61 (Minn.1977). Although there are various ways to present the factual basis for a guilty plea, all of them contemplate the disclosure on the record of the specific facts that would establish the elements of the crime to which the defendant is pleading guilty. See Holscher v. State, 282 N.W.2d 866, 867 (Minn.1979) (factual basis consisted of prosecutor’s summarization of state’s evidence, which was unchallenged by defendant); State v. Neumann, 262 N.W.2d 426, 432-33 (Minn.1978) (factual basis supplied by testimony from partial trial); Goulette, 258 N.W.2d at 761 (defendant denied he was guilty, factual support for plea based on defense counsel’s summarization of state’s proposed evidence); State v. Hague, 304 Minn. 139, 142, 229 N.W.2d 168, 169 (1975) (factual basis established, in part, by testimony of complainant).

Because the case is being remanded, the district court will have an opportunity to consider and to require the disclosure of the factual bases for pleas, if any, that may occur during further proceedings.

DECISION

The district court does not have discretion to depart from the Minnesota Sentencing Guidelines solely because the defendant agrees to the departure, but rather must nevertheless disclose the substantial and compelling circumstances that support the departure.

Reversed and remanded.

LANSING, Judge

(dissenting)

I respectfully dissent. I agree that written findings on guidelines departures help assure uniformity in sentencing, but I cannot agree that the holding of Givens is dictum that this court can disregard. Neither can I discern legislative intent to overrule Givens in the legislature’s subsequent amendment to the sentencing guidelines.

The supreme court in Givens held that a defendant may waive his right to be sentenced under the guidelines and, therefore, may agree to a departure as part of a plea agreement. 544 N.W.2d at 777. That holding resolved a recurring issue — namely, whether a plea agreement providing a negotiated sentence duration is sufficient to support a departure. See State v. Pearson, 479 N.W.2d 401, 405-06 (Minn.App.1991) (holding that defendant’s admissions in pleading guilty made plea agreement adequate grounds for departure), review denied (Minn. Feb. 10, 1992); cf. State v. Synnes, 454 N.W.2d 646, 647 (Minn.App.1990) (holding that plea agreement was not adequate basis for departure), review denied (Minn. June 26, 1990). The supreme court’s opinion on this core issue, even if it were dictum, is entitled to considerable weight. See In re Estate of Bush, 302 Minn. 188, 207, 224 N.W.2d 489, 501 (1974) (assigning considerable weight to dictum that contains strong indication of court’s opinion on question directly involved and argued).

The legislature has amended the sentencing guidelines statute in response to Givens. See 1997 Minn. Laws ch. 96, § 1. But the pre-amended statute was not central to the Givens analysis, and the Givens court merely referred to it in passing. See Givens, 544 N.W.2d at 774 n. 1 (noting history of sentencing guidelines, including enactment of Minn.Stat. § 244.09 (1994) establishing guidelines commission). The majority implies that the Givens court acknowledged that Minn.Stat. § 244.09, subd. 5 required the district courts to follow the guidelines. But that language was not added to the statute until the 1997 amendment. Thus, Minn.Stat. § 244.09, subd. 5 was not at issue in Givens, and the 1997 amendment to that statute does not undermine the Givens holding that a negotiated sentence duration is sufficient to support a departure unless the amendment demonstrates a legislative intent to overrule Givens.

The 1997 amendment merely states that sentencing pursuant to the guidelines “is not a right that accrues to a person connoted of a felony” but, rather, a procedure rooted in public policy. Minn.Stat. § 244.09, subd. 5 (2000). This language expresses disagreement with the Givens characterization of guidelines sentencing as a “right.” But it is silent on the Givens analysis that is at issue here — whether a sentencing departure may be based solely on a plea agreement. Furthermore, another provision in the same law prohibits the guidelines commission from making a plea agreement an impermissible grounds for departure. 1997 Minn. Laws ch. 96, § 11(a). The law also directs the guidelines commission to study “the advisability of allowing a plea agreement to be used as a reason for a departure.” Id., § 11(b). Thus, no legislative intent to overrule Givens can be read into the 1997 amendment. Accordingly, I believe this court must follow Givens and affirm the sentencing departures.

The majority extends its criticism of the “rights” analysis in Givens too far. The Givens court posited a “right to be sentenced under the guidelines,” 544 N.W.2d at 777, in the context of an agreed-upon upward departure. Nothing in the opinion suggests that a defendant has a right to the presumptive sentence that would bar any upward departure even when aggravating circumstances exist.

Finally, the majority appears to remand to allow the district court to amplify the factual basis for the plea. But appellant has not raised that issue on appeal. Furthermore, the usual remedy for an inadequate factual basis, withdrawal of the plea, is a remedy Misquadace does not seek. See State v. Ecker, 524 N.W.2d 712, 716 (Minn.1994) (involving petition for postcon-viction relief to withdraw a guilty plea for lack of proper factual basis).

      . At the sentencing hearing the district court stated that burglary (Minn.Stat. § 609.582, subd. 3) carries a presumptive stayed sentence of 18 months, and that fleeing a peace officer (Minn.Stat. § 609.487, subd. 3) carries a presumptive stayed sentence of 13 months. However, it appears that the correct presumptive sentences under the sentencing guidelines are as stated in this opinion.

      . Dictum is a statement in an opinion that could have been eliminated without impairing the result of the opinion. A Dictionary of Modem Legal Usage 274 (2d ed.1995).


author: NEUMANN, Justice.

text:
    2001 ND 122
    Evan BERG, Plaintiff and Appellee, v. DAKOTA BOYS RANCH ASSOCIATION, Defendant and Appellant.
    No. 20000301.
    Supreme Court of North Dakota.
    July 10, 2001.

      Mark R. Hays (argued) and Herbert L. Meschke of Pringle & Herigstad, P.C., Minot, for defendant and appellant.
    Richard L. Hagar of Kenner Sturdevant Peterson & Cresap, P.C., Minot, for plaintiff and appellee.
   NEUMANN, Justice.

[¶ 1] The Dakota Boys Ranch Association (“Boys Ranch”) appeals from a trial court order, arguing the trial court erred in denying summary judgment and in admitting an exhibit into evidence. We affirm.

I

[¶2] Evan Berg worked at the Boys Ranch. On November 20, 1996, the Boys Ranch terminated his employment. The parties disputed the reasons for his termination. Berg claimed he was terminated for reporting suspected child abuse. The Boys Ranch claimed he was terminated for allowing a subordinate to leave early and covering for her. Although Berg did not work after November 20, 1996, the Boys Ranch paid him through the first two weeks of December. On December 31, 1996, Berg signed a release in exchange for a check for $1,396.14. The amount included compensation for his unused vacation time and an amount equal to his regular wages for the last half of December.

[¶3] Berg sued for wrongful termination, asserting he was fired in retaliation for reporting the suspected child abuse, in violation of N.D.C.C. § 50-25.1-09.1. The Boys Ranch moved for summary judgment, arguing Berg’s claim had been settled and Berg had signed a release. The trial court denied the motion, reasoning there was a question of fact as to whether Berg was coerced into signing the release by psychological and economic hardship. At trial, the Boys Ranch did not use the signed release to defend its termination of Berg. In fact, Berg introduced the release into evidence over the Boys Ranch’s objection. At the close of the evidence, the Boys Ranch moved for judgment as a matter of law, without further elaboration, explanation, or argument. The trial court denied the motion. The jury returned a special verdict finding the Boys Ranch wrongfully terminated Berg and awarding him $42,000 in damages. The trial court entered judgment in favor of Berg.

[¶ 4] On appeal, the Boys Ranch argues the trial court erred in denying summary judgment and in admitting the signed release into evidence.

II

[¶ 5] The Boys Ranch argues the trial court erred in denying its motion for summary judgment based on the release Berg signed.

[¶ 6] An order or judgment denying a motion for summary judgment is nonappealable. Hellman v. Thiele, 413 N.W.2d 321, 329 (N.D.1987). However, we have stated that nonappealable interlocutory orders may be reviewed on appeal from a judgment. Herzog v. Yuill, 399 N.W.2d 287, 292 (N.D.1987); see, e.g., In re Ketterling, 515 N.W.2d 158 (N.D.1994) (involving an order denying a change of judge); Adolph Rub Trust, First Trust Co. of N.D. v. Rub, 474 N.W.2d 73 (N.D.1991) (involving an order denying a jury trial). “In fact most intermediate orders which are non-appealable may be reviewed as an incident to or a part of the final action of the court.” Stormon v. Dist. Court of Pierce County, 76 N.D. 713, 718, 38 N.W.2d 785, 787 (1949).

[¶ 7] Rule 35(a), N.D.R.App.P., which authorizes review of nonappealable orders, provides:

(a) Civil Appeals; Intermediate Orders. Upon an appeal from a judgment, the supreme court may review any intermediate order or determination of the court below which involves the merits and necessarily affects the judgment appearing upon the record transmitted or returned from the trial court.

[¶ 8] The requirement that an intermediate order or determination must involve the merits and necessarily affect the judgment to be reviewable on appeal from the judgment has been in effect since territorial days. Herzog, 399 N.W.2d at 292-93 (citing Code of Civil Procedure, Revised Codes of the Territory of Dakota, § 411 (1877)).

[¶ 9] In Herzog, we specifically explained that a denial of summary judgment does not involve the merits of a case because it leaves the issue still pending before the court:

“An order which leaves the point involved still pending before the court, and undetermined, does not involve the merits.” Schaff v. Kennelly, 69 N.W.2d 777, 780 (N.D.1955) (quoting Ferguson v. Jensen, 76 N.D. 647, 650, 38 N.W.2d 560, 562 (1949)). “A denial of summary judgment is not a decision on the merits; it simply is a decision that there is a material factual issue to be tried.” 10 Charles A. Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure: Civil 2d § 2712, p. 587 (1983). “An order denying a motion for summary judgment is merely interlocutory and, leaving the case pending for trial, it decides nothing except that the parties may proceed with the case.” Rude v. Letnes, 154 N.W.2d 380, 381 (N.D.1967).

399 N.W.2d at 293.

[¶ 10] Once a case proceeds to trial, the question of whether a party has met its burden as to the elements of a claim must be answered with reference to the evidence and the record as a whole, rather than by looking to the pretrial submissions alone. See 10 James Wm. Moore et al., Moore’s Federal Practice § 56.41[3][d] (3d ed.1999) (stating that the district court’s judgment on the verdict after a full trial on the merits supersedes the earlier summary judgment proceedings).

The general rule is that all interlocutory orders in the action are merged into the final judgment and may be reviewed on appeal of that judgment. If summary judgment is denied, however, and the case goes to judgment on the merits after a full trial, the issue of whether the pretrial, summary judgment proof was sufficient or not is moot; instead, only the sufficiency of the evidence at trial may be raised, e.g., by a properly preserved motion for judgment as a matter of law. Thus, an interlocutory denial of summary judgment may not be raised on appeal from the final judgment after a trial on the merits. The movant can, however, preserve for appellate review the same issues raised by the summary judgment motion by making appropriate motions for judgment as a matter of law at the close of all the evidence and after the verdict is returned.

James Wm. Moore, Moore’s Federal Rules Pamphlet, 2001, Part 1: Federal Rules of Civil Procedure § 56.8[2] (2000) (citations omitted); see also Phadings and Motions, 28 Fed. Proc., L.Ed., § 62:636 (1996) (stating the proper redress for the allegedly erroneous denial of summary judgment is not through appeal of the denial, but through subsequent motions under Rule 50 for judgment as a matter of law); 10 James Wm. Moore et al., Moore’s Federal Practice § 56.41[3][f| (3d ed.1999) (stating if summary judgment is erroneously denied based on factual disputes, the proper procedure is to make a motion for judgment as a matter of law at the close of the evidence, and an appellate court may then review the denial of that motion).

[¶ 11] We conclude the Boys Ranch’s contention the trial court erred in denying summary judgment is moot. The appropriate question on appeal is whether the trial court erred in denying the Boys Ranch’s motion for judgment as a matter of law.

[¶ 12] A trial court’s decision on a motion for judgment as a matter of law is fully renewable on appeal. In re Dion, 2001 ND 53, ¶ 33, 623 N.W.2d 720. A trial court’s decision on a motion brought under N.D.R.Civ.P. 50 to grant or deny judgment as a matter of law is based on whether the evidence, when viewed in the light most favorable to the party opposing the motion, leads to but one conclusion as to the verdict about which there can be no reasonable difference of opinion. Dion, 2001 ND 53, at ¶ 33, 623 N.W.2d 720. In determining whether the evidence is sufficient to create an issue of fact, the trial court must view the evidence in the light most favorable to the nonmoving party, and must accept the truth of the evidence presented by the nonmoving party, and the truth of all reasonable inferences from that evidence. Id. at ¶ 33.

[¶ 13] At trial, Berg presented his wrongful termination case to the jury. The Boys Ranch attempted to defend by showing a reasonable explanation for Berg’s termination. It did not pursue its legal theory that the signed release barred the claim. At the close of the evidence, the Boys Ranch moved for judgment as a matter of law, but said nothing more. No basis for that motion was articulated to the trial court; no argument was offered. The trial court denied the motion. Although the Boys Ranch may have intended by its motion to preserve its argument that the signed release barred Berg’s action, the Boys Ranch had failed to present evidence during the trial to support that issue. During the trial, the Boys Ranch not only abandoned its argument that the signed release barred the action, it even objected to Berg’s offer of the release as evidence. On the record presented, we conclude the Boys Ranch abandoned its argument that the signed release barred Berg’s claim. Because the argument was abandoned at the trial, it has not been preserved for appellate review, and we do not consider it.

Ill

[¶ 14] The Boys Ranch argues the trial court erred in admitting the release into evidence because Berg did not limit his offer of the release to a valid specific purpose, such as bias or prejudice of a witness.

[¶ 15] Rule 408, N.D.R.Ev., specifies that evidence of a compromise of a disputed claim is not admissible to prove liability or the amount of the claim. The explanatory note to N.D.R.Ev. 408 states, “Whenever the evidence is introduced for a purpose other than proving liability or validity, ... the rule does not apply.”

[¶ 16] The record indicates the release was offered to rebut testimony that Berg was fired for taking excessive leave by showing he had ample leave accrued. After the Boys Ranch objected to Berg’s introduction of the release, Berg’s counsel stated:

[O]n page 29 of that document under vacation, it does state that accrued vacation will be paid upon termination. It also states that when an employee resigns, vacation days may not be used in lieu of request of notification. So, as a counter to Mr. Hays’ argument that, that the Exhibit 13 was some for — some form of settlement or compromise, I would argue that part of that exhibit shows twelve hundred dollars for vacation pay, or for vacation days, and that again, the testimony from Mr. Berg was that he didn’t get his check unless he signed the document.

[¶ 17] Because the release was not offered to prove liability or the amount of the claim, the trial court did not err in admitting the release into evidence.

IV

[¶ 18] The judgment of the trial court is affirmed.

[¶ 19] GERALD W. VANDE WALLE, C.J., and MARY MUEHLEN MARING, CAROL RONNING KAPSNER and DALE V. SANDSTROM, JJ.,

      . A final appealable judgment was subsequently entered.