author: ROBERT H. SCHUMACHER, Judge.

text:
    Eddie Dee LOYD, petitioner, Respondent, v. Joan FABIAN, et al., Appellants.
    No. A03-1779.
    Court of Appeals of Minnesota.
    July 13, 2004.
    Bradford W. Colbert, Legal Assistance to Minnesota Prisoners, William Mitchell College of Law, St. Paul, MN, for respondent.

      Mike Hatch, Attorney General, Kari Jo Ferguson, Assistant Attorney General, St. Paul, MN, for appellants.
    Considered and decided by KLAPHAKE, Presiding Judge; SCHUMACHER, Judge; and STONEBURNER, Judge.
   OPINION

ROBERT H. SCHUMACHER, Judge.

Commissioner of Corrections Joan Fabian and warden Connie Roehrich appeal from a district court order denying respondent Eddie Dee Loyd’s petition for writ of habeas corpus but ordering that his period of extended incarceration be limited to 30 days pursuant to a contract signed by Loyd prior to his entering a drug-treatment program. Fabian and Roehrich argue that the document signed by Loyd is not an enforceable contract. We reverse.

FACTS

In February 1999, Loyd pleaded guilty to felony drive-by shooting in violation of Minn.Stat. § 609.66, subd. 1(e) (1998). He was sentenced to 126 months in prison. While incarcerated, Loyd completed an alcohol and drug assessment, which recommended that he be placed in a drug-treatment program. Loyd, was informed that the recommended treatment was mandatory, and if he failed to participate he would receive an extended incarceration period. MinmStat. §§ 244.03, .05, subd. lb(b) (2000), provide that the Commissioner of Corrections may discipline inmates with extended incarceration for violating disciplinary rules or refusing to participate in rehabilitative programming.

In August 2001, prior to entering a drug-treatment program, Loyd signed a document with the title “Minnesota Correctional Facility — Lino Lakes, TRIAD CENTER, PROGRAM CONTRACT.” Above Loyd’s signature, the document contained the following statement: “I have received and understand the orientation manual. I agree to abide by all Institutional policies and rules. I agree to abide by all TRIAD Center rules now in effect or which, from time to time, may be amended.” A TRIAD staff member also signed the document.

Offender Disciplinary Regulation 510 provides a penalty of extended incarceration for inmates who fail to complete mandated treatment. At the time Loyd signed the “program contract” and entered the TRIAD program, an inmate’s first violation of Regulation 510 resulted in 30 days of extended incarceration if the inmate pleaded guilty. Seven days after Loyd entered TRIAD, all inmates received a memorandum explaining a new penalty structure for Regulation 510. Under the new policy, which became effective September 17, 2001, an inmate’s first violation would generally result in 90 days of extended incarceration.

In November 2001, the TRIAD program placed Loyd on probation for lack of progress, lack of effort, and unwillingness to work with the treatment process. Approximately two weeks later, Loyd was “terminated” from the program for lack of progress, poor motivation, and being argumentative with peers and staff. Thereafter, he received notice of violating Regulation 510 based on his termination’ from the TRIAD program. Loyd waived his right to a hearing, admitted violating Regulation 510, and received a punishment of 90 days of extended incarceration.

Loyd filed a petition for writ of habeas corpus. In his petition, Loyd argued the 90 days of extended incarceration should be rescinded because the treatment program violated his constitutional rights because the program required him to read and write and he was illiterate. In the alternative, Loyd argued that 60 of the 90 days of extended incarceration should be returned because at the time he entered the program the applicable punishment was 30 days of extended incarceration.

The district court denied Loyd’s request for an evidéntiary hearing and denied his petition for writ of habeas corpus, determining Loyd’s constitutional claim was not valid. The court, however, ordered Loyd’s release date changed to reflect 30 days of extended incarceration instead of the 90 days imposed by the department of corrections. The court concluded that the parties should be held to the contract signed in August 2001, which the court found restricted the department to imposing the 30-day penalty that was in place at the time the parties entered the contract.

ISSUE

On a petition for writ of habeas corpus, did the district court err in ordering an inmate’s release date be changed pursuant to a program contract between the inmate and the department of corrections?

ANALYSIS

A writ of habeas corpus is a statutory civil remedy available “to obtain relief from [unlawful] imprisonment or restraint.” Minn.Stat. § 589.01 (2000). The scope of inquiry in habeas corpus proceedings is limited to constitutional issues, jurisdictional challenges, claims that confinement constitutes cruel and unusual punishment, and claims that confinement violates applicable statutes. See, e.g., Kelsey v. State, 283 N.W.2d 892, 894-95 (Minn.1979) (stating habeas corpus may be used to test whether denial of parole violates applicable statutes or constitutional provisions and to test allegations that confinement conditions constitute cruel and unusual punishment); State of Minn., ex rel. Griep v. Skon, 568 N.W.2d 453, 454-55 (Minn.App.1997) (reviewing district court denial of habeas petition where petitioner claimed hearing officer lacked jurisdiction and disciplinary proceeding allegedly violated due process). Habeas is also an appropriate remedy if the relief to which a petitioner may be entitled is immediate release. Kelsey v. State ex rel. McManus, 309 Minn. 560, 561, 244 N.W.2d 53, 54 (1976). “The burden is on the petitioner to show the illegality of his detention.” Case v. Pung, 413 N.W.2d 261, 262 (Minn.App.1987), review denied (Minn. Nov. 24, 1987).

On appeal, neither party contests whether the district court acted outside the permissible scope of a habeas corpus proceeding in considering Loyd’s argument that the department of corrections should be held to the terms of the program contract in punishing Loyd’s failure to comply with a mandated drug-treatment program. We therefore independently determine this issue. See Minn. R. CivApp. P. 103.04 (“The appellate courts may reverse, affirm or modify the judgment or order appealed from or take other action as the interest of justice may require.”).

Loyd filed a petition for writ of habeas corpus, arguing his constitutional rights were violated because the treatment program required him to read and write, and he is illiterate. The district court found Loyd’s constitutional claim was not valid. In addition to his claim of a. constitutional violation, Loyd requested relief on a contract theory. The contract theory did not allege illegality based on a statutory or constitutional violation, raise a jurisdictional challenge, claim that Loyd’s confinement constitutes cruel and unusual punishment, or argue that Loyd was entitled to immediate release. As such, habeas corpus was not available to challenge the extended incarceration period on the contract theory. The district court erred in granting relief on an issue outside the permissible scope of a habeas corpus proceeding.

Even if the district court had the authority to determine the contract issue, we note that a valid contract did not exist between the parties. “The factor that distinguishes an unenforceable promise from an enforceable contract is consideration, or the voluntary assumption of an obligation by one party upon condition of an act or forbearance by the other.” Murray v. MINNCOR, 596 N.W.2d 702, 704 (Minn.App.1999) (quotation omitted), review denied (Minn. Sept. 28, 1999). Under Minnesota statues, the commissioner of corrections must provide appropriate mental health programs and has the authority to discipline inmates who violate disciplinary rules or refuse to participate in rehabilitative programming by imposing a “disciplinary confinement period.” Minn.Stat. §§ 244.03, .05, subd. lb(b).

By signing the “program contract”, Loyd agreed with the statements that he had received an orientation manual and would abide by institutional and TRIAD rules and policies. Although a staff signature is present on the form, this signature at most acknowledges what the commissioner is already obligated and authorized to do — provide rehabilitative programs and enforce disciplinary rules. See Murray, 596 N.W.2d at 704 (holding agreement signed by prison inmate was not contract enforceable against department of corrections where agreement did not bind department in any way, but rather fulfilled requirements of the Ashurst-Sumners Act). The document Loyd signed does not bind the department of corrections in any way and therefore is not an enforceable contract.

DECISION

In a writ of habeas corpus petition, the district court erred in ordering Loyd’s release date be changed when the issue on which relief was granted was outside of the permissible scope of inquiry.

Reversed.


source: Caselaw Access Project

author: KLAPHAKE, Judge.

license: Public Domain

text:
    STATE of Minnesota, Respondent, v. Dennis L. WHITLEY, Appellant.
    No. A03-725.
    Court of Appeals of Minnesota.
    July 20, 2004.

      Mike Hatch, Attorney General, St. Paul, MN; and Amy Klobuehar, Hennepin County Attorney, Jean E. Burdorf, Assistant County Attorney, Minneapolis, MN, for respondent.
    John M. Stuart, State Public Defender, Ann McCaughan, Assistant State Public Defender, Minneapolis, MN, for appellant.
    Considered and decided by KLAPHAKE, Presiding Judge, HALBROOKS, Judge, and FORSBERG, Judge.

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

   OPINION

KLAPHAKE, Judge.

Appellant Dennis L. Whitley seeks review of his conviction and sentence for fourth-degree criminal sexual conduct, arguing that the evidence was not sufficient to prove force or coercion, as required by MinmStat. § 609.345, subd. 1(c) (2002). Appellant further argues that although he waived his right to a jury trial on the criminal conviction, his due process rights were violated when the district court enhanced his sentence without informing him of his right to have a jury determine whether he committed a predatory offense or without obtaining a knowing and intelligent waiver of that right. Lastly, appellant asserts that imposition of a 40-year sentence was disproportionate to the seriousness of his conduct.

Viewed in the light most favorable to the verdict, we conclude that the evidence was sufficient to prove appellant guilty beyond a reasonable doubt of fourth-degree criminal sexual conduct; we therefore affirm appellant’s conviction. But because the district court failed to inform appellant of his right to have a jury determine whether he committed a predatory offense and because appellant’s jury trial waiver did not explicitly include a waiver for purposes of sentencing enhancement, we reverse the imposition of a 40-year sentence as unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and remand for sentencing not inconsistent with the United States Supreme Court’s recent decision in Blakely v. Washington, — U.S. -, 124 S.Ct. 2531, — L.Ed.2d - (2004).

FACTS

On February 18, 2002, L.S., a young woman, was jogging along the Mississippi River. Appellant, who was riding a bike, attempted to engage her in conversation, making several suggéstive remarks about her appearance. When L.S. refused to talk to him, appellant rode off in another direction, accosting a second woman, M.G. A short time later, in a deserted area, L.S. had the feeling that someone was following her. Appellant caught up to her and grabbed her buttocks and genital area. L.S. was afraid she was going to be raped. She pushed appellant away and ran toward some other people, who lent her a cell phone to call police. When police arrived, L.S. was shaken and crying.

Based on the description of the attacker given by L.S. and M.G., police conducted a database search for anyone whose history included this type of incident and who matched the physical description. Appellant was the only person who matched these criteria. L.S. identified appellant immediately in a photographic lineup. Learning that he was a suspect, appellant turned himself in.

By amended complaint, appellant was charged with fourth-degree criminal sexual conduct and failure to register as a sex offender. Appellant pleaded guilty to the failure to register charge and waived his right to a jury trial on the fourth-degree criminal sexual conduct charge. After this waiver was entered into the record, the state asked for hearing on its motion to seek sentencing enhancement under Minn. Stat. § 609.108, subds. 1, 2 (2002). Although a discussion of sentencing enhancement ensued, appellant was not informed of his right to have a jury determine issues related to enhancement or asked to waive his right to a jury trial on that issue.

At the subsequent court trial, L.S. testified that she was frightened during the attack and that appellant had used force. She testified that the contact “hurt” and that appellant grabbed “a sensitive area.” The investigating officer testified that he inferred the sexual contact was painful because of the sensitivity of the genital area. The district court found that L.S. experienced fear and some pain during the contact and found appellant guilty of fourth-degree criminal sexual conduct.

A hearing was set -to determine whether appellant was a patterned sex offender under Minn.Stat. § 609.108. At this hearing, three of appellant’s former .victims testified, as well as Dr. Bruce Renken, a clinical psychologist, and Stephen Huot, the director of sex offender services for the Department of Corrections. Over appellant’s objections to Dr. Renken’s credentials, which included 39 assessments of offenders but only one of a patterned sex offender, Dr. Renken testified that appellant is likely to re-offend and meets the statutory criteria of Minn.Stat. § 609.108. Huot testified that appellant failed to complete sex offender programming during his previous incarceration. The state argued that appellant fit the profile of a patterned sex offender, citing his nine known victims since he turned 15 years old and his lack of motivation to change his behavior.

The district court found that appellant is a patterned sex offender and that he committed a predatory crime motivated by his sexual impulses. The court sentenced him to 40 years, the statutory maximum under Minn.Stat. § 609.108, subds. 1, 2. This sentence is significantly greater than either the presumptive guidelines sentence of 57 months, given appellant’s criminal history score of eight, or the statutory maximum for fourth-degree criminal sexual conduct, without enhancement, of 10 years. See MinmStat. § 609.345, subd. 2 (2002).

ISSUES

1. Is the evidence sufficient to sustain appellant’s .conviction for fourth-degree criminal sexual conduct?

. ■ 2. Were appellant’s due process rights violated by failure to obtain a knowing and intelligent waiver of his right to a jury trial on the sentencing enhancement?

ANALYSIS

1. Sufficiency of the Evidence

This court limits its review of a claim of insufficiency of the evidence to ascertaining whether, from the facts in the record and any legitimate inferences drawn from them, a jury could reasonably conclude that the defendant was guilty of the charged offense beyond a reasonable doubt. State v. Atkins, 543 N.W.2d 642, 646 (Minn.1996). The evidence must be viewed in the light most favorable to the verdict, and it must be assumed that the jury believed the state’s witnesses and disbelieved any evidence to the contrary. Id. This standard of review also is used where the defendant has waived a jury trial and the district court is the factfinder. See State v. Oanes, 543 N.W.2d 658, 660, 661 (Minn.App.1996).

Appellant was convicted' of fourth-degree criminal sexual conduct, which occurs when “[a] person ... engages in sexual contact with another person [and] the actor uses force or coercion to accomplish the sexual contact.” Minn. Stat. § 609.345, subd. 1(c) (2002). “Coercion” means “words or circumstances that cause the complainant reasonably to fear that the actor will inflict bodily harm upon ... the complainant ... or force the complainant to submit to sexual penetration or contact, but proof of coercion does not require proof of a specific act or threat.” Minn.Stat. § 609.341, subd. 14 (2002). “Force” is defined as

the infliction, attempted infliction, or threatened infliction ... of bodily harm or commission or threat of any other crime by the actor against the complainant ... which (a) causes the complainant to reasonably believe that the actor has the present ability to execute the threat and (b) if the actor does not have a significant relationship to the complainant, also causes the complainant to submit.

Id., subd. 3. The coercion or use of force need not precede the sexual contact, but can occur “when an actor coerces a complainant so as to cause her fear while accomplishing sexual contact.” State v. Middleton, 386 N.W.2d 226, 230 (Minn.1986).

L.S. testified that during the attack, “I thought I was dead. I thought I was going to be raped. There’s a little waterfall area right in that area. I thought he was going to push me over there and have his way.” On cross-examination, she described the sexual contact as a “grabbing” and stated that “it hurt.”

The district court made detailed findings following the close, of testimony. -In particular, the court found, coercion in the following facts: (1) appellant’s remarks to L.S. were inappropriate and the kind of remarks that ■ “particularly raise in the minds of a lone female foreboding”;. (2) the fact that L.S. started to sprint to get away from appellant indicates the level of fear she had; and (3) appellant’s approach to L.S. was “coercive jn .that it, to any normal person, would send at least a subliminal message that ‘y°ur failure to comply with my wishes would not be in your best interests.’ ” The district court made a specific finding that L.S. was a credible and accurate witness. The court further found that L.S. was credible when she described the sexual contact as painful, relying on .her testimony that appellant “grabb[ed] and forcefully manipulated]” her genitals “for several seconds.” The district court concluded that the sexual contact was “forceful and coercive” and “by force this woman was deprived of the possession of a part of her body.”

Viewing the testimony in the light most favorable to the verdict and considering that the district court found the complainant to be a credible witness, we conclude that sufficient evidence was presented to sustain a finding of fourth-degree criminal sexual conduct. We therefore affirm appellant’s conviction.

2. Enhanced Sentencing

Under Minn.Stat. § 609.108, subd.-1 (2002), the court “shall” impose a sentence at least 'double the presumptive sentence and not more than the statutory maximum, if “(1) the court is imposing an executed sentence” of a violation of Minn. Stat. § 609.345;- “(2) the court finds the offender is a danger to public safety”; and “(3) the court finds [based on a professional assessment by an experienced examiner] that the offender needs long-term treatment ... beyond the presumptive term of imprisonment and supervised release.” A sentence imposed Under this section is a departure from the sentencing guidelines. Minn.Stat. § 609.108, subd. 5 (2002).

MinmStat. § 609.108, subd. 2 (2002), states that “[if] the factfinder determines, at the time of the trial or the guilty plea, that a predatory offense was motivated by, committed in the course of, or committed in furtherance of sexual contact or penetration ... and the court is imposing a sentence under subdivision 1,” the statutory maximum is 40 years, despite the maximum penalty otherwise provided for the offense.

In Apprendi, the United States Supreme Court held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Id. at 490, 120 S.Ct. at 2362-68. The Minnesota Supreme Court adopted the Apprendi holding in State v. Grossman, 636 N.W.2d 545, 550-51 (Minn.2001).

In Grossman, the supreme court stated that although the factors of MinmStat. § 609.108, subd. 1, are traditionally left to the court to determine when sentencing a defendant, under subdivision 2, the factfin-der must find that the defendant’s predatory crime was motivated by or committed in the course of or furtherance of sexual contact. Id. at 549-51. Thus, the court in Grossman determined that increasing the statutory maximum to 40 years is unconstitutional under Apprendi unless a jury or factfinder specifically finds beyond a reasonable doubt that the conditions of subdivision 2 are met. Id. at 550.

Although appellant waived his right to a jury trial on the criminal charge, he did not make an explicit waiver of his right to have a jury consider the issue of sentencing enhancement nor was he informed that the factfinder, whether court or jury, had to make a finding that he committed a predatory offense motivated by sexual contact or penetration before an enhanced sentence could be imposed. Our supreme court recently affirmed that “[d]ue process :.. requires that each of these findings be made by a jury based on proof beyond a reasonable doubt.” O’Meara v. State, 679 N.W.2d 334, 340 (Minn.2004).

A defendant may waive the right to a jury trial, but the waiver must be knowing, intelligent, and voluntary. State v. Ross, 472 N.W.2d 651, 653 (Minn.1991). From the record before us, it is not clear that appellant understood that he faced a sentence of 40 years, rather than the presumptive 57 months, or that he had the right to have a jury determine whether the factors permitting enhancement were proved beyond a reasonable doubt. We conclude that appellant did not effectively waive his right to have a jury determine whether he committed a predatory offense. We therefore reverse appellant’s sentence under Minn.Stat. § 609.108, subd. 2. In light of the United States Supreme Court’s recent opinion, Blakely v. Washington, — U.S. -, 124 S.Ct.2531, — L.Ed.2d - (2004), we remand this matter to the district court for sentencing not inconsistent with that opinion.

DECISION

Viewing the evidence in the light most favorable to the verdict, there is sufficient evidence to sustain appellant’s conviction for fourth-degree criminal sexual conduct. But because appellant did not make a knowing and intelligent waiver of his right to have a jury determine whether his sentence could be enhanced under Minn.Stat. § 609.108, subd. 2, we reverse the 40-year enhanced sentence and remand for sentencing not inconsistent with Blakely v. Washington, — U.S. -, 124 S.Ct. 2531, — L.Ed.2d - (2004).

Affirmed in part, reversed in part, and remanded.


author: TOUSSAINT, Chief Judge.

text:
    Henry HICKMAN, Relator, v. COMMISSIONER OF HUMAN SERVICES, Respondent.
    No. A04-523.
    Court of Appeals of Minnesota.
    July 20, 2004.

      Henry Hickman, St. Paul, MN, pro se relator.
    Cynthia B. Jahnke, Assistant Attorney General, St. Paul, MN, for respondent commissioner.
    Considered at Special Term and decided by TOUSSAINT, Chief Judge; PETERSON, Judge; and HARTEN, Judge.
   SPECIAL TERM OPINION

TOUSSAINT, Chief Judge.

FACTS

Relator Henry Hickman is a chemical-dependency counselor. Progress Valley, Inc. and My Home, Inc. submitted relator’s background-study forms to the Commissioner of the Minnesota Department of Human Services (commissioner) for review. By letters dated October 24, 2003, and November 18, 2003, the Department of Human Services Licensing Division notified relator that, due to relator’s 2003 conviction for attempt to coerce and relator’s 1990 conviction for two counts of theft, relator is disqualified from providing direct-contact services for facilities licensed by the Minnesota Department of Human Services and the Minnesota Department of Health, from facilities serving children or youth licensed by the Minnesota Department of Corrections, and from unlicensed personal-care-provider organizations. The October 24 and November 18 letters notified relator of his right to seek reconsideration of the disqualification.

On November 13, 2003, relator requested reconsideration using a form provided by the Department of Human Services. In his reconsideration request, relator described the attempt-to-coerce offense as an isolated incident resulting from the end of a personal relationship. Relator expressed remorse for the incident but stated it did not show a risk of harm to relator’s clients, with whom relator indicated he had always maintained a strictly professional relationship. Relator also cited his past employment and his unblemished record as a chemical-dependency counselor.

In a letter dated December 10, 2003, the commissioner notified relator that the October 24 and November 18 disqualifications were not set aside. The letter states that the commissioner determined that relator had failed to show that he did not pose a risk of harm, basing the determination on the number of disqualifying offenses, the recency of relator’s attempt-to-coerce conviction, and the victimizing nature of the latest disqualifying offense. The December 10 letter stated that it was a final decision, and-notified relator of his right to file a certiorari appeal with the court of appeals within 60 days after receipt of the decision.

Relator did not file a certiorari appeal with this court from the December 10 decision. Instead, relator sent a letter dated January 20, 2004, to the commissioner requesting reconsideration of the December 10 decision. The letter provides more information about the attempt-to-coerce offense, stating that relator was “scared and resentful” over the termination of his relationship with the victim and that the victim was demanding repayment of money given to relator throughout the course of the relationship. Relator provided examples of the victim’s financial demands, and also enclosed letters and feedback statements from human services professionals and from clients that relator had counseled.

On February 2, the commissioner issued a decision denying relator’s “second request for reconsideration.” The decision states that the following factors are determinative: (1) the recency of the felony conviction for attempt to coerce; (2) the victimizing nature and consequences of relator’s acts that led to the conviction; (3) information contained in a Dakota County Sheriffs Department report showing that relator placed the blame on the victim of the crime; (4) the number of disqualifying events; and (5) the lack of evidence that relator had undergone any training or rehabilitation as a result of the conviction, other than court-ordered time spent incarcerated. The February 2 decision, like the December 10 decision, states that it is a final agency decision subject to review in the court of appeals by certiorari.

On March 26, 2004, relator filed this certiorari appeal from the February 2 decision. This court questioned whether the December 10 decision was the final agency decision and, if so, whether the time to appeal that decision expired- before- this appeal was filed. The parties submitted memoranda addressing the jurisdiction question.

DECISION

■ The appeal period and the acts required to invoke appellate jurisdiction in a certiorari appeal are governed by the applicable statute. Minn. R. Civ.App. P. 115.01. The commissioner’s decision to grant or deny a request to set aside a disqualification is a final administrative-agency action reviewable by certiorari under MinmStat. ch. 606. Rodne v. Comm’r of Human Servs., 547 N.W.2d 440, 444 (Minn.App.1996). No writ of certiorari shall be issued to correct any proceeding unless such writ shall be issued within 60 days after the party applying for such writ shall have received due notice of the proceeding sought to be reviewed thereby. Minn.Stat. § 606.01 (2002). The writ must be served on the adverse party within the 60-day'period. Minn.Stat. § 606.02 (2002).

Certiorari ordinarily is- available only when the order from which the appeal is taken is a final determination of the parties’ rights, rather than an interlocutory or intermediate order. Overseas Commodities Corp. v. Dockman, 389 N.W.2d 254, 256 (Minn.App.1986). The October 24 and November 18 initial disqualification determinations were not immediately appealable because relator had the right to seek reconsideration within 30 days.., See Minn.Stat. § 245C.21, subd. 2 (Supp.2003).

The commissioner’s December 10 decision refusing to set aside the October 24 and November 18 disqualification determinations was the final agency decision, with immediate consequences for relator. If the individual studied does not submit a timely request for reconsideration under section 245C.21 or the individual submits a timely request for reconsideration, but the commissioner does not set aside the disqualification, the commissioner shall notify the license holder of the disqualification and order the license holder to immediately remove the individual from any position allowing direct contact with persons receiving services from the license holder. Minn.Stat. § 245C.23, subd. 2 (Supp. 2003).

The appeal period expired 60 days after relator received the December 10 decision. See Minn.Stat. § 606.01. The commissioner states that the December 10 decision was mailed to relator on December 10. Relator does not indicate when he received the December 10 decision, but relator does not claim that receipt of the decision was delayed. This certiorari appeal was filed on March 26. Relator has not demonstrated that the writ of certiorari was issued and served within 60 days after he received notice of the December 10 decision.

The commissioner agrees that the time to appeal the December 10 decision expired before this appeal was filed, but the commissioner argues that there are issues this court can review in an appeal from the February 2 decision denying relator’s second motion for reconsideration. The commissioner states that new information provided by a disqualified individual may be reviewed to determine if the information demonstrates that the individual does not pose a risk of harm.

The commissioner may rescind a previous set aside of a disqualification based on “new information” that indicates the individual may pose a risk of harm to persons served by the applicant, license holder, or registrant. Minn.Stat. § 245C.22, subd. 6 (Supp.2003). But the statute does not contain a similar provision allowing the commissioner to reconsider a final decision denying a request to set aside' a disqualification based on new information.

Even if the commissioner does have inherent authority to reconsider the denial of a request to set aside a disqualification based on new information, relator’s second reconsideration request does not include any information that was not available to relator at the time he made his first request for reconsideration of the initial disqualification determinations. The statute governing reconsideration of initial disqualification determinations allows the disqualified individual to request additional time, not to exceed 30 days, to obtain information in support of the request for reconsideration. Minn.Stat. § 245C.21, subd. 2. But Minn.Stat. ch. 245C does not authorize the disqualified individual to file a second reconsideration motion challenging the commissioner’s decision on the first, timely motion for reconsideration.

In a certiorari appeal under Minn. Stat. ch. 606, if the writ of certiorari is not timely issued or served, the writ must be discharged for lack of jurisdiction. In re Ultraflex Enterprises’ Appeal, 494 N.W.2d 89, 90-91 (Minn.App.1992). The general certiorari statute, MinmStat. ch. 606, does not provide that the 60-day appeal period is extended by a motion to reconsider the final agency decision. The time to file a certiorari appeal of the December 10 final agency decision was not extended by the commissioner’s acceptance of relator’s second, untimely reconsideration request, and the February 2 order denying the unauthorized reconsideration request is not independently appealable. See Limongelli v. GAN Nat’l Ins. Co., 590 N.W.2d 167, 169 (Minn.App.1999) (dismissing appeal from judgment denying reconsideration and holding that district court lacked authority to extend time to appeal original, final judgment).

This court may not extend the time prescribed by law for securing review of an administrative-agency decision. Minn. R. Civ.App. P. 126.02. Because relator failed to file a timely certiorari appeal from the December 10 final agency decision, and the February 2 decision denying the unauthorized reconsideration request is not independently appealable, we must dismiss this appeal.

Writ of certiorari discharged.


author: VANDE WALLE, Chief Justice.

text:
    2004 ND 142
    In the Interest of T.J.L. (Previously R.), Child. Nancy D. Yon, Assistant State’s Attorney, Petitioner and Appellee, v. L.S. (Mother), B.L. (Father), Respondents and Appellants, Grand Forks County Social Services (Custodian), Respondent.
    No. 20030291.
    Supreme Court of North Dakota.
    June 30, 2004.
    Dale Richard Rivard (appeared), Assistant State’s Attorney, and Carmell Berry (argued), third-year law student, Grand Forks, N.D., for petitioner and appellee.
    DeWayne Johnston (submitted on brief), Olson Johnston Law Office, Grand Forks, N.D., for respondents and appellants.
   VANDE WALLE, Chief Justice.

[¶ 1] L.S. (“Linda,” a pseudonym) and B.L. (“Bob,” a pseudonym) appealed from a judgment terminating parental rights to their daughter, T.J.L. (“Tracy,” a pseudonym). We conclude the district court’s findings that there is clear and convincing evidence Tracy is deprived, the causes and conditions of the deprivation are likely to continue, and as a result of the continued deprivation, she will probably suffer serious physical, mental, or emotional harm if Linda’s and Bob’s parental rights are not terminated, are not clearly erroneous. We affirm.

I

[¶ 2] Under N.D.C.C. § 27-20-44(l)(b)(l), termination of parental rights requires satisfaction of a three-pronged test which the party petitioning for termination must prove by clear and convincing evidence: (1) the child is a deprived child; (2) the conditions and causes of the deprivation are likely to continue; and (3) by reason thereof, the child is suffering, or will probably suffer, serious physical, mental, moral, or emotional harm. In re B.N., 2003 ND 68, ¶ 18, 660 N.W.2d 610. Effective March 1, 2004, N.D.R.Civ.P. 52(a) was amended to provide that findings of fact in juvenile matters shall not be set aside unless clearly erroneous. A finding of fact is clearly erroneous under N.D.R.Civ.P. 52(a) if there is no evidence to support it, if it is clear to the reviewing court that a mistake has been made, or if the finding is induced by an erroneous view of the law. Akerlind v. Buck, 2003 ND 169, ¶ 7, 671 N.W.2d 256. Unlike the situation in Interest of T.F., 2004 ND 126, ¶ 8, 681 N.W.2d 786, where a plurality of the Court applied the former de novo standard of review because the appellant elected to not request a review of a referee’s decision by the district court in the belief that this Court would conduct a de novo review, this case was heard and decided by the district court judge in the first instance. Therefore, we apply N.D.R.Civ.P. 52(a) to our review of the district court’s findings.

II

[¶ 3] Linda and Bob contend on appeal there is no clear and convincing evidence that the conditions and causes of Tracy’s deprivation are likely to continue.

[¶ 4] In In re D.R., 2001 ND 183, ¶ 11, 636 N.W.2d 412, we explained the evidence necessary to establish continuation of deprivation:

Evidence of a parent’s background, including previous incidents of abuse and deprivation, may be considered in determining whether deprivation is likely to continue. In Interest of L.F., 1998 ND 129, ¶ 16, 580 N.W.2d 573. Evidence of past or present deprivation, however, is not alone sufficient to terminate parental rights, and there must be prognostic evidence that deprivation will continue or be unremedied. Id. This Court has defined prognostic evidence as evidence that forms the basis of reasonable predication as to future behavior. In Interest of A.S., 1998 ND 181, ¶ 19, 584 N.W.2d 853.

[¶ 6] At the time of the termination proceedings, Linda was 31 years old and had been diagnosed with major depression, intermittent explosive disorder, obsessive compulsive disorder, and borderline personality. She functions in the low normal range verbally, but in the retarded range for performance tasks. Social Services workers have been involved with Linda since 1993. Linda’s parental rights to a son were involuntarily terminated in 1998. Although Linda’s mental health has improved somewhat over the past several years, she continues to function in the moderately impaired range. Linda lives with Bob in Grand Forks. Bob was 25 years old and suffered a traumatic brain injury as a child. He has been diagnosed with mental retardation, seizure disorder, “static encephalopathy with left hemipare-sis,” and functions at the level of a four to five-year-old child. Bob also receives support services through Social Services. Linda and Bob have histories of violent behavior.

[¶ 6] Tracy was born in late 2000. Two months before the birth, Social Services received three child abuse and .neglect reports about Linda and Bob. The reports included concerns about their ability to care for the new infant and the suitability of their home. Linda was unable to understand the need to keep appointments with her obstetrician/gynecologist. The home was unsanitary and Linda was known to bring rodents and animals to live there. Linda and Bob lacked interpersonal communication skills and did not use services that were available to them. Upon Tracy’s birth, the child was placed directly from the hospital into foster care.

[¶ 7] Linda first visited the child on December 12, 2000, and Bob’s first visitation occurred on December 27, 2000. One hour weekly supervised office visits continued until June 2001, when the visits were increased to twice a week until August 2001. Hourly in-home visits then began and were increased to two times per week in September 2001 and three times per week in January 2002. Bob and Linda’s first overnight visit with the child occurred in January 2002. During this time, Linda and Bob were referred to the “Nurturing Program,” which teaches parenting skills. During sessions, the couple had difficulty caring for Tracy and did not know what to do when she would start to cry. Despite Tracy’s diagnosis of upper respiratory condition, Linda and Bob smoked in her presence to Tracy’s detriment. After a visit with her parents, it would take about two weeks for Tracy’s respiratory problems to recover, and when weekly visitations began, her respiratory problems were constant.

[¶ 8] Tracy’s foster mother testified about problems With Tracy after the visitations:

[Tracy] would come back very agitated. She was congested, mucus nose, runny eyes. She had respiratory problems. Her clothes would be dirty, food would be in her hair. Her vagina area and bottom área were not clean. She was hungry. She was very aggressive. She ' would only at that point go tú me when I would pick her up. She would not go to anyone else in the family but was very aggressive. She was hitting and pulling hair and very fearful.

[¶ 9] Unsupervised visitations ceased in February 2002 after Linda left Tracy alone with Bob, in violation Of instructions from Social Services. Bob admitted he could not have Tracy alone in his custody because of his seizure disorder. At the time of the trial in July 2003, Tracy had been in foster care for 967 nights. See N.D.C.C. § 27 — 20—44(1) (b) (2) (court can terminate parental rights if child is deprived and has been in foster care “for at least four hundred fifty out of the previous six hundred sixty nights”).

[¶ 10] The evidence establishes that Social Services attempted to work with Linda and Bob to improve their homemaking and parenting skills, but the couple avoided offered services and adopted an adversarial relationship with the service providers. Linda and Bob have shown little or no ability to provide discipline for Tracy and their parenting abilities actually decreased the longer the couple spent with the child. A psychologist testified Linda and Bob did not have the capability to grow mentally along with Tracy. The district court found Tracy was “making good progress in foster care” and that “[i]t would be disastrous for [Tracy’s] development to be in the custody of [Bob] and [Linda].”

[¶ 11] When there has been an extensive period in which efforts have been made to overcome a parent’s inabilities to effectively parent, courts cannot allow the child to remain in an indeterminate status midway between foster care and the obvious need for permanent placement. See In re D.N., 2001 ND 71, ¶ 14, 624 N.W.2d 686. Having carefully reviewed the record, we conclude the district court’s findings that there is clear and convincing evidence Tracy is deprived, the causes and conditions of the deprivation are likely to continue, and as a result of the continued deprivation, she will probably suffer serious physical, mental, or emotional harm if Linda’s and Bob’s parental rights are not terminated, are not clearly erroneous.

Ill

[¶ 12] The judgment is affirmed.

[¶ 13] GERALD W. VANDE WALLE, C.J., DALE v. sandstrom; william A. NEUMANN, MARY MUEHLEN MARING, and CAROL RONNING KAPSNER, JJ., concur.


text:
    2004 ND 132
    Carol Kay MOEN and LaRae A. Thomas, Co-Trustees of the Jay V. Thomas Family Trust, Plaintiffs, v. Laurie THOMAS, n/k/a Laurie Moorhead, individually and as surviving spouse, heir and personal representative of Jerry J. Thomas, deceased, and his estate, Defendants, Third Party Plaintiffs and Appellants, v. Fred C. Rathert and Neff Cresap Rathert Eiken & Irigoin, P.C., Third Party Defendants and Appellees.
    No. 20030309.
    Supreme Court of North Dakota.
    June 30, 2004.

      Greg W. Hennessy, Williston, ND, for defendants, third-party plaintiffs and appellants.
    Frederick E. Whisenand, Jr. (argued) and Kenneth G. Hedge (on brief), Crowley, Haughey, Hanson, Toole & Dietrich, P.L.L.P., Williston, ND, for third-party defendants and appellees.
   VANDE WALLE, Chief Justice.

[¶ 1] Laurie Thomas appealed from a judgment entered upon a jury verdict dismissing her third-party complaint against Fred C. Rathert and his former law firm, Neff Cresap Rathert Eiken & Irigoin, P.C. (“Rathert”). We affirm.

I

[¶ 2] Many facts relevant to this case are set forth in our decisions resolving prior appeals in Moen v. Thomas, 2001 ND 95, 627 N.W.2d 146 (“Moen I ”), and Moen v. Thomas, 2001 ND 110, 628 N.W.2d 325 (“Moen II”), and we will not reiterate them here except as necessary to explain the resolution of the issues in this appeal.

[¶ 3] Laurie Thomas and her husband, Jerry, lived on Jay Thomas’s ranch. In October 1995, Jay Thomas died and his will gave Jerry Thomas, his son, the ranch headquarters and some additional land in Williams County. Jerry Thomas also received an option to purchase other ranch land on a contract for deed. As an alternative to the option, the will provided Jerry Thomas could, for $3 per acre, lease the additional land annually for seven years, with an option to purchase during the lease term. Rathert was Jay Thomas’s attorney and represented the estate upon Jay Thomas’s death. Shortly after Jay Thomas died, Rathert met with Jay Thomas’s widow and children to discuss probate of the will. Jay Thomas’s widow and ehil-. dren held several family meetings to discuss various estate and tax issues. Rat-hert was present at some of the meetings, but was not present at others. During one of the early family meetings, Rathert orally advised the family members there might be possible conflicts and they should consult with their own attorneys. During a December 1995 meeting, Jerry Thomas declined the option to purchase the property on a contract for deed and stated he wanted to exercise his right to lease the property.

[¶ 4] As the probate progressed, Rat-hert advised the family to put Jay Thomas’s ranch into a trust. Rathert drafted the trust agreement, which was signed by the family members, including Jerry Thomas, on December 3,1996. The agreement provided that Jerry Thomas had the right and option to lease the property for agricultural purposes as provided in Jay Thomas’s will. Two of Jay Thomas’s daughters, LaRae Thomas and Carol Moen, were named co-trustees.

[¶ 5] Rathert originally intended to draft a written lease between the trust and Jerry Thomas. However, one of the co-trustees informed the office staff at Rat-hert’s firm that the family would prepare its own lease. Jerry Thomas informed the family he did not want to be bound to a seven-year lease, but preferred to continue renting the property on an oral year-to-year lease. At Jerry Thomas’s request, no written lease was executed, and the family agreed to an oral year-to-year lease. A handwritten note was delivered to Rat-hert’s office by LaRae Thomas. It stated, “It is [Carol Moen’s] and my intention to draw up our own lease agreement following terms stated w/in the Will.” As a result, Rathert did not draft a written lease agreement, and no written agreement between Jerry Thomas and the trust was ever executed.

[¶ 6] Jerry Thomas died in 1997 and Laurie Thomas remained in possession of the land. In December 1997, she tendered a check to the trustees for the 1998 lease payment. The trustees notified her that there was -no valid lease agreement. When Laurie Thomas remained on the land, the trustees initiated an action to quiet title to the property. Laurie Thomas answered, counterclaimed, and filed a third-party complaint for legal malpractice against Rathert.

[¶ 7] The quiet title action proceeded to trial, which resulted in a judgment quieting title in the trust. We affirmed on appeal. Moen I, 2001 ND 95, ¶ 1, 627 N.W.2d 146. Rathert was granted summary judgment on Laurie Thomas’s legal malpractice claim, and in Moen II, we reversed and remanded. 2001 ND 110, ¶ 16, 628 N.W.2d 325 (concluding a genuine issue of material fact existed regarding whether there was an attorney-client relationship between Rathert and Jerry Thomas). On remand, trial was held before a six-person jury, which'found Jerry Thomas subjectively believed he had an attorney-client relationship with Rathert, but the greater weight of the evidence did not indicate Rathert owed a duty to Jerry Thomas. Judgment was entered dismissing, with prejudice, Laurie Thomas’s third-party complaint against Rathert.

[¶ 8] On appeal, Laurie Thomas raises three issues. First, she contends the special verdict, as accepted by the trial court, is inconsistent and irreconcilable. Second, she argues the wording and content of the special verdict form precluded the jury from determining an ultimate issue of fact, confused the jury, and caused the jury to misapprehend the jury instructions. Finally, she claims the trial court abused its discretion by refusing to instruct the jury on Rathert’s potential liability to her as a third-party beneficiary.

II

[¶ 9] Laurie contends the special verdict is inconsistent and irreconcilable. In part, the special verdict form returned by the jury contained the following questions, instructions, and answers:

1. Do you find by a greater weight of the evidence that Jerry Thomas subjectively believed he had an attorney-client relationship with the Defendants?
/ Yes _ No
If you answered Question 1 “Yes” then answer Question 2. If you answered Question 1 “No” then sign and return the Verdict.
2. Do you find by a greater weight of evidence that the Defendants had a duty to Jerry Thomas?
_ Yes /No
If you answered Question 2 ‘Yes” then answer Question 3. If you answered Question 2 “No” then sign and return the Verdict.
3. Do you find by a greater weight of the evidence that the Defendants breached any duty owed to Jerry Thomas?
_ Yes_No
If you answered Question 3 “Yes” then answer Question 4. If you answered Question 3 “No” then sign and return the verdict.

During the reading of the jury’s verdict, the clerk of court read the jury’s answers to the first two questions, the second of which indicated the jury found no duty owed by Rathert to Jerry Thomas. Laurie Thomas contends that, although the jury was instructed not to answer the third question if it found no duty existed under question two, the clerk of court indicated during the reading of the verdict that the jury answered “No” to the third question anyway. The trial court stopped the clerk’s reading of the verdict based on the jury’s response to the second question. The jury was polled and all of the jury members indicated the result was their “true verdict.” The jury was then released. Laurie Thomas did not object or move for a new trial. The paper verdict delivered to Laurie Thomas after trial indicated the jury answered “Yes” to the first question and “No” to the second question. There was no answer to the third question.

[¶ 10] Laurie Thomas claims, based upon the clerk’s reading of the verdict, that the jury answered the third question on the special verdict form in plain disregard of the court’s instructions. She argues this created an inconsistent and irreconcilable verdict because, without a duty, there cannot be a finding of no breach of duty.

[¶ 11] A special verdict is set aside on appeal only if it is perverse and clearly contrary to the evidence. Moszer v. Witt, 2001 ND 30, ¶ 11, 622 N.W.2d 223. We have adopted the following test for reconciling apparent conflicts in a jury’s verdict:

“[Wjhether the answers may fairly be said to represent a logical and probable decision on the relevant issues as submitted. If after a review of the district court’s judgment no reconciliation is possible and the inconsistency is such that the special verdict will not support the judgment entered below or any other judgment, then the judgment must be reversed and the case remanded for a new trial.”

Id. (quoting Barta v. Hinds, 1998 ND 104, ¶ 6, 578 N.W.2d 553) (emphasis in original). In this case, we are not convinced the alleged inconsistency in the verdict exists because the copy of the special verdict form provided to the parties indicates the jury only answered the first two questions. Therefore, Laurie Thomas’s first issue on appeal is without merit, and she properly abandoned it during oral argument.

Ill

[¶ 12] The second issue on appeal focuses on the trial court’s inclusion of the word “subjectively” in the first question of the special verdict form, which addressed whether there was an attorney-client, relationship between Rathert and Jerry Thomas. Laurie Thomas claims it was error for the trial court to include the word because it precluded the jury from finding Rathert owed an objective duty to Jerry Thomas. Whether an attorney-client relationship exists depends upon the particular circumstances of each case, and we agree with Laurie Thomas that an attorney-client relationship does not depend entirely upon a potential client’s subjective belief. See In re Disciplinary Action Against Giese, 2003 ND 82, ¶ 17, 662 N.W.2d 250 (“The existence of an attorney-client relationship turns largely on the client’s subjective belief it exists and looks to the nature of the work performed and to the circumstances under which confidences are divulged”) (emphasis added). The client’s subjective belief must also be objectively reasonable. See In re Disciplinary Action Against McKechnie, 2003 ND 22, ¶ 19, 656 N.W.2d 661 (quoting ABA/BNA Lawyers’ Manual On Professional Conduct, at 31:101 (2002)) (An attorney-client relationship “may arise when a putative client reasonably believes that a particular lawyer is representing him and the lawyer does not disabuse the individual of this belief’).- Furthermore, a lawyer who knows an individual believes an attorney-client relationship exists, even if that belief is unreasonable, should disabuse the individual of that belief. See generally, 1 Ronald E. Mallen & Jeffrey M. Smith, Legal Malpractice § 8.2 (5th ed.2000).

[¶ 13] We review Laurie Thomas’s contentions on appeal in light, of the established law of the case, Deichert v. Fitch, 424 N.W.2d 903, 905 (N.D.1988), and, within the context of this case, the inclusion of the word “subjectively” in the first special verdict question does not warrant reversal.

A.

[¶ 14] Special verdict forms are governed by N.D.R.Civ.P. 49(a), and a trial court has broad discretion over the nature and scope of written questions submitted to the jury. Nesvig v. Nesvig, 2004 ND 37, ¶ 12, 676 N.W.2d 73. In reviewing a trial court’s use of a special verdict, we consider whether the trial court abused its discretion, based on the evidence presented and the issues involved in the case. Id. Rule 49(a), N.D.R.Civ.P., provides in part:

The court shall give to the jury such explanation and instruction concerning the matter thus submitted as may be necessary to enable the jury to make its findings upon each issue. If in so doing the court omits any issue of fact raised by the pleadings or by the evidence, each party waives the right to a trial by jury of the issue so omitted unless before the jury retires the party demands its submission to the jury. As to an issue omitted without a demand the court may make a finding; or, if it fails to do so, it is deemed to have made, a finding in accord with the judgment on the special verdict.

[¶ 15] ■ “[W]here no objection to a special verdict form was made, the jury’s finding upon the special verdict is binding.” Hoerr v. Northfield Foundry and Mach. Co., 376 N.W.2d 323, 327 (N.D.1985). Further, when a party fails to object to a special verdict form that omits questions on which evidence has been presented, the party is deemed to have waived the right to have these issues tried to the jury. Horstmeyer v. Golden Eagle Fireworks, 534 N.W.2d 835, 840 (N.D.1995). A party must specifically request that the questions be submitted, and vague references to requested instructions or special verdict forms are insufficient. Id.

[¶ 16] In Horstmeyer, a negligence action, Golden Eagle asserted the trial court was required to submit a special verdict form allowing the jury to assess a percentage of fault to the plaintiffs husband. Id. at 839. However, the record did not contain a special verdict form submitted by Golden Eagle, and Golden Eagle’s counsel did not specifically object to the failure of the special verdict form to address the plaintiffs husband’s possible contributing fault. Id. at 840. When given an opportunity to object to the special verdict form and the instructions, Golden Eagle made an “oblique reference” to its proposed instructions in general, but did not object to the failure of the verdict form to address the husband’s possible contributing fault. Id. Consequently, we held Golden Eagle’s oblique reference to its proposed instructions was insufficient to raise an issue under N.D.R.Civ.P. 49(a). Id.

[¶ 17] In the present case, Laurie Thomas submitted a proposed special verdict form and proposed some jury instructions. At trial, she objected to any variations between the special verdict form and jury instructions submitted to the jury and her proposed special verdict form and jury instructions. However, Laurie Thomas’s proposed instructions and proposed special verdict form did not address whether Jerry Thomas reasonably believed Rathert was his attorney; therefore, her objection did not preserve for appeal the issue of whether the trial court erred by including the term “subjectively” in the first question on the special verdict form.

B.

[¶ 18] Our disposition of this case would not change even if Laurie Thomas had properly preserved this issue for appeal. Laurie Thomas claims the jury could not find an objective duty existed between Rathert and Jerry Thomas because the first special verdict question confined the issue to Jerry Thomas’s subjective belief. But, a jury is presumed to follow instructions provided by the court. Lemer v. Campbell, 1999 ND 223, ¶ 13, 602 N.W.2d 686. Neither the jury instructions nor the special verdict form precluded the jury from finding Rathert owed a duty to Jerry Thomas as a result of the inclusion of the term “subjectively” in the first special verdict question. The opening jury instructions informed the jury that it would decide whether an attorney-client relationship existed between Rathert and Jerry Thomas. The closing jury instructions defined thé attorney-client relationship and instructed the jury that it would receive a special verdict form, upon which it would have to make special written findings upon each issue of fact. The closing jury instruction regarding an attorney-client relationship stated:

The existence of an attorney-client relationship does not depend on an express contract or the payment of fees, and may be implied from the parties’ conduct. An attorney-client relationship is established when a party seeks and receives advice and assistance from an attorney on matters pertinent to the legal profession. The existence of an attorney-client relationship turns largely on' the client’s subjective belief it exists and looks- to the nature of the work performed and to the circumstances under which confidences are divulged. The existence of an attorney-client relationship is a question of fact.

This instruction did not limit the existence of an attorney-client relationship to a subjective belief on Jerry Thomas’s part. Evaluating the evidence presented along with the jury instructions and the jury’s answer to the first special verdict question, it is clear that the jury concluded an attorney-client relationship existed between Rathert and Jerry Thomas. See Ingalls v. Paul Revere Life Ins. Group, 1997 ND 43, ¶ 9, 561 N.W.2d 273.

[¶ 19] Laurie Thomas has not alleged that the remaining jury instructions did not properly instruct the jury on the applicable law once it determined an attorney-client relationship existed. Normally, whether a duty exists is a question of law for the court to decide unless it depends upon facts that must be determined by the fact finder. Iglehart v. Iglehart, 2003 ND 154, ¶ 11, 670 N.W.2d 343. The jury was not' precluded from finding a duty existed between Rathert and Jerry Thomas if it answered ‘Tes” to the first special verdict question, and the second special verdict question did not limit the jury’s consideration to an objective or subjective duty. There are many duties that arise in an attorney-client relationship, but this case turns on whether Rathert owed Jerry Thomas a duty to prepare a written lease between him and the trust. Although this duty could have arisen from Jerry Thomas’s subjective belief an attorney-client relationship existed if that belief was objectively reasonable under the circumstances, the duty itself cannot be accurately characterized as objective or subjective. Sufficient evidence was presented at trial from which the jury could have concluded that no duty ever existed or that, if there once was a duty, it subsequently ceased to exist, and therefore, Rathert did not owe a duty to Jerry Thomas.

[¶ 20] Furthermore, in the context of this case, the first special verdict question made it easier for the jury to find an attorney-client relationship existed between Rathert and Jerry Thomas, and the jury’s answer to it seems to be more beneficial to Laurie Thomas. To this extent, any error in the special verdict form was harmless to her. Accordingly, we conclude the trial court did not commit reversible error by submitting the special verdict form to the jury.

rv

[IT 21] Laurie Thomas contends the trial court erred by refusing to include questions on the special- verdict form regarding Rathert’s potential liability to her as a third-party beneficiary. She has not cited, nor have we been able to find, a jury instruction proposed by her regarding an attorney’s liability to a third-party beneficiary. See Amyotte v. Rolette County Housing Auth., 2003 ND 48, ¶ 5, 658 N.W.2d 324 (“While a trial court may properly refuse a requested instruction not applicable to the evidence, a party is entitled to an instruction on a valid applicable theory if there is some evidence to support it”). Instead, the proposed special verdict form she submitted included questions addressing the issue. However, in Moen II, a majority of this Court did not decide the question of third-party beneficiary liability resulting from an attorney-client relationship in a legal malpractice case. 2001 ND 110, ¶ 11 n. 2, 628 N.W.2d 325 (finding it unnecessary to address, as a question" of first impression, whether we should recognize an exception to the requirement of attorney-client privity in a legal malpractice case because a genuine issue of material fact existed regarding whether there was an attorney-client relationship between Rathert and Jerry Thomas). Furthermore, the only evidence presented at trial in support of this contention was that Rathert was aware Jerry Thomas had a wife and two children. See id. at ¶ 19 (Maring, J., concurring in part and dissenting in part) (“The cases extending the attorney’s duty to non-clients are limited to factual situations in which the client’s sole purpose in retaining an attorney is to benefit directly some third party”). Because this theory was not sufficiently developed at trial and in the requested instructions, the trial court did not abuse its discretion by refusing to include Laurie Thomas’s requested questions in the special verdict form.

[¶ 22] We affirm.

[¶ 23] GERALD W. VANDE WALLE, C.J., CAROL RONNING KAPSNER, MARY MUEHLEN MARING, WILLIAM A. NEUMANN, and DALE V. SANDSTROM, JJ„ concur.


author: MARING, Justice.

text:
    2004 ND 131
    FRONTIER ENTERPRISES, LLP, Plaintiff and Appellee v. DW ENTERPRISES, LLP; Douglas Moos; Waco Traxel dba Iron Eagle Saloon and Iron Eagle Saloon, LLC; Bismarck Heating & Air Conditioning, Inc.; and Koch Electric, Inc., a/k/a Koch Electric Systems, Inc.; Semi-Trailer Sales & Leasing, Inc.; Terra International, Inc.; and Credit Bureau of Bismarck, Defendants Bismarck Heating & Air Conditioning, Inc., Defendant and Appellant.
    No. 20040050.
    Supreme Court of North Dakota.
    June 30, 2004.

      John M. Olson, Olson Cichy Bliss, Bismarck, ND, for plaintiff and appellee.
    Jonathan P. Sanstead, Pearce & Durick, Bismarck, ND, for defendant and appellant.
   MARING, Justice.

[¶ 1] Bismarck Heating & Air Conditioning, Inc., (“Bismarck Heating”) appealed from a partial summary judgment canceling a contract for deed and quieting title in Frontier Enterprises, LLP, (“Frontier”). We conclude this appeal is from a nonappealable interlocutory order, and we, therefore, dismiss the appeal.

[¶ 2] Frontier sold property in Mandan on a contract for deed to defendant, DW Enterprises, LLP (“DW”). After purchasing the property, DW contracted with Bismarck Heating to repair or replace rooftop air conditioning units on a building located on the property. The work was completed. DW defaulted on the contract for deed, and Frontier brought this action to foreclose the contract for deed and to quiet title in Frontier. Bismarck Heating filed a counterclaim seeking to enforce its mechanic’s lien against Frontier for the air conditioner replacements and seeking damages from Frontier on a theory of unjust enrichment. Bismarck Heating also filed cross-claims against DW and defendants Douglas Moos, Waco Traxel dba Iron Eagle Saloon, and Iron Eagle Saloon, LLC, on theories of breach of contract, fraud, negligent misrepresentation, and civil conspiracy. Bismarck Heating also sought to foreclose its mechanic’s lien against these parties.

[¶ 3] In its summary judgment, the trial court cancelled the contract for deed and quieted title in Frontier. However, the court did not dispose of the cross-claims brought by Bismarck Heating. The right to appeal is a jurisdictional matter which this Court may consider sua sponte. Belden v. Hambleton, 554 N.W.2d 458, 460 (N.D.1996). We must dismiss an appeal on our own motion if we conclude that we do not have jurisdiction. Henry v. Sec. Comm’r, 2003 ND 62, ¶ 5, 659 N.W.2d 869. Only those judgments and decrees which constitute a final determination of the rights of the parties to an action and those orders enumerated in N.D.C.C. § 28-27-02 are appealable. Id. at ¶ 8. A partial summary judgment which does not adjudicate all claims of all parties is a non-appealable interlocutory order. See Sec. State Bank v. Orvik, 2001 ND 197, ¶ 6, 636 N.W.2d 664.

[¶ 4] Generally, this Court will not hear appeals from interlocutory orders, because such appeals are premature and the trial court may revise them at any time before the entry of final judgment adjudicating all claims. Dimond v. State Bd. of Higher Educ., 1999 ND 228, ¶ 9, 603 N.W.2d 66. This Court’s refusal to hear appeals arising from interlocutory orders conserves judicial resources by promoting a policy against piecemeal appeals. Id.

[¶ 5] Because the judgment entered by the trial court is an interlocutory partial judgment, which does not adjudicate all claims against all parties, we dismiss the appeal.

[¶ 6] WILLIAM A. NEUMANN, DALE V. SANDSTROM, and CAROL RONNING KAPSNER, JJ., concur.