author: TOUSSAINT, Chief Judge.

text:
    STATE of Minnesota, Respondent, v. Ronald James BELL, Appellant.
    No. A04-1595.
    Court of Appeals of Minnesota.
    Sept. 20, 2005.

      Mike Hatch, Attorney General, and Susan Gaertner, Ramsey County Attorney, St. Paul, MN, for respondent.
    John M. Stuart, State Public Defender, Suzanne M. Senecal-Hill, Assistant Public Defender, Minneapolis, MN, for appellant.
    Considered and decided by KLAPHAKE, Presiding Judge, TOUSSAINT, Chief Judge, and FORSBERG, Judge.

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

   OPINION

TOUSSAINT, Chief Judge.

Appellant Ronald James Bell challenges his convictions of first-degree burglary, in violation of Minn.Stat. § 609.582, subd. 1(c) (2002), and violation of a domestic-abuse no-contact order, in violation of Minn.Stat. § 518B.01, subd. 22 (2002), arguing that the district court erred in admitting under Minn.Stat. § 634.20 (2002), evidence of two prior incidents in which appellant violated an order for protection involving the same victim. We conclude that the district court abused its discretion by not addressing whether the probative value of the evidence outweighed the danger of unfair prejudice; however, the decision was not reversible error because had the district court conducted the balancing test, the evidence would have been admissible, and it is not reasonably possible that the evidence substantially affected the verdict. We affirm.

FACTS

Appellant and D.N. had known each other for approximately 20 years, and lived together until their dating relationship ended. On May 21, 2002, D.N. obtained an order for protection (OFP) that prevented appellant from contacting her and from entering her residence.

On May 21, 2003, while in bed with her then-boyfriend, D.N. heard appellant run up the stairs toward her bedroom and yell, “B — h, I’m going to kill you now.” Appellant approached D.N., pointed a gun at her, and D.N. shielded her face with her arm as appellant hit her on her head and elbow with the gun. Appellant fled with several of D.N.’s belongings, and D.N. immediately called 911. When the police officers arrived, D.N. was hysterical. The officers took photos of her injuries and found in her bed several pieces that had broken off a gun. The original OFP from May 21, 2002, had expired, but on May 6, 2003, a no-contact order was entered in a criminal case against appellant that prevented him from contacting D.N. and from entering her residence.

On June 9, 2003, appellant was arrested in Chicago and extradited to Minnesota in November 2003. Prior to trial, the district court granted the state’s motion to present under Minn.Stat. § 634.20 (2002), evidence of two prior incidents of violation of an order for protection committed by appellant against D.N. The district court excluded two other instances of similar conduct.

The first of the two incidents allowed by the district court occurred on November 17, 2002. Appellant threw a ladder through a window in D.N.’s residence and repeatedly rammed his truck against garbage cans and her house. D.N. called the police, and appellant was arrested. Appellant was charged and pleaded guilty to violation of the OFP. The second incident occurred on March 28, 2003. D.N. arrived home to find appellant in her bed and called the police. Appellant was arrested and, again, pleaded guilty to violation of the OFP. On May 6, 2003, appellant was sentenced, and a no-contact order was issued.

D.N.’s cousins, ILL. and A.L., who were in the house during the May 21, 2003 incident, testified at appellant’s trial. K.L. testified that she awoke to the sound of someone running up the stairs and D.N.’s voice saying, “Ronnie, what are you doing in here?” She heard appellant respond, “B — h, you’re in here with another n-r, and I will kill you.” Unable to open D.N.’s bedroom door because it was latched from the inside, K.L. woke A.L. after she was able to see appellant moving towards D.N. A.L. testified that he was awakened by K.L. who said, “Ronnie’s in the house. He’s not supposed to be in the house. I heard Ronnie.” He then heard appellant’s voice telling D.N. to “[g]et your f-g a — out of bed.” When A.L. heard people running down the stairs, he got dressed and ran outside to see appellant running away wearing a jogging suit that he had seen him in three days earlier. A jury found appellant guilty of first-degree burglary and violation of the no-contact order and not guilty of first-degree aggravated robbery. The district court sentenced appellant to the presumptive sentence of 68 months in prison.

ISSUE

Did the district court abuse its discretion in admitting under Minn.Stat. § 634.20 (2002), evidence of two prior incidents in which appellant violated an order for protection involving the same victim?

ANALYSIS

Appellant claims that the district court abused its discretion by admitting evidence of two previous violations of an order for protection involving the same victim because the evidence was unnecessary and its prejudicial effect outweighed any probative value. The reviewing court will not reverse the district court’s admission of evidence of other crimes or prior bad acts unless the district court abused its discretion. State v. Waino, 611 N.W.2d 575, 578 (Minn.App.2000). “A defendant who claims that the trial court erred in admitting evidence bears the burden of showing the error and any resulting prejudice.” State v. Grayson, 546 N.W.2d 731, 736 (Minn.1996). This court must find actual prejudice in order to reverse the district court. State v. Schulz, 691 N.W.2d 474, 477 (Minn.2005).

Generally, “[e]vidence of another crime, wrong, or act is not admissible to prove the character of a person in order to show action in conformity therewith[,]” but such evidence may be admissible if proven by clear and convincing evidence to show “motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Minn. R. Evid. 404(b). Minn.Stat. § 634.20 (2002), provides alternative authority in addition to rule 404(b), to admit prior domestic-abuse evidence:

Evidence of similar conduct by the accused against the victim of domestic abuse ... is admissible unless the probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issue, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

The rationale for the admissibility of such evidence is to show the “strained relationship” of the parties and is relevant to establishing motive and intent. State v. Copeland, 656 N.W.2d 599, 602 (Minn.App.2003), revieiv denied (Minn. Apr. 29, 2003). Recently, the Minnesota Supreme Court stated that evidence presented under this statute need not meet the heightened standard of clear and convincing evidence required for the admission of character or Spreigl evidence, but need only be more probative than prejudicial. State v. McCoy, 682 N.W.2d 153, 159 (Minn.2004). “[T]he admissibility of evidence under Minn.Stat. 634.20 depends only on (1) whether the offered evidence is evidence of similar conduct; and (2) whether the probative value of the evidence is substantially outweighed by the danger of unfair prejudice.” Id. at 158.

Appellant asserts that the prior conduct offered is not similar because the crimes he was charged with were not domestic-abuse crimes but, rather, were first-degree burglary and first-degree aggravated robbery. Appellant’s argument is flawed. Under Minn.Stat. § 634.20, “[e]vidence of similar conduct by the accused against the victim of domestic abuse ... is admissible unless the probative value is substantially outweighed by the danger of unfair prejudice .... ‘Domestic abuse’ ... [has] the meaning! ] given under section 518B.01, subdivision 2.” Domestic abuse is defined in Minn.Stat. § 518B.01, subd. 2(a)(1) (2002), as “physical harm, bodily injury, or assault” committed against a family or household member by a family or household member. (Emphasis added.) Under the domestic-abuse act, family or household members include persons who are presently residing together or who have resided together in the past. Minn.Stat. 518B.01, subd. 2(b)(4) (2002).

Appellant was charged with first-degree burglary, in violation of Minn.Stat. § 609.582, subd. 1(c) (2002), which states that “[w]hoever enters a building without consent and with intent to commit a crime, or enters a building without consent and commits a crime while in the building ... [and] assaults a person within the building” commits burglary in the first degree. (Emphasis added.) The evidence to prove the current offense involves similar conduct. Appellant assaulted D.N. when he entered her home, and the assault is considered domestic abuse because appellant and D.N. were previously involved in a significant relationship and had lived together.

Appellant also argues that the district court committed reversible error because the evidence of prior conduct was unnecessary and the district court did not explicitly determine whether the probative value of the evidence was substantially outweighed by the danger of unfair prejudice. The Minnesota Supreme Court has “on numerous occasions recognized the inherent [probative] value of evidence of past acts of violence committed by the same defendant against the same victim.” State v. Williams, 593 N.W.2d 227, 236 (Minn.999); see also State v. Henriksen, 522 N.W.2d 928, 929 (Minn.1994) (“Evidence bearing on the defendants relationship with the victim ... is often admitted in terroristic threats and domestic abuse cases. Such evidence puts the alleged criminal conduct of the defendant in context, may help the jury in assessing the defendants intent and motivation, and may serve other valid purposes.”) Such evidence is inherently probative, but the district court must still weigh the probative value of the evidence against the danger of unfair prejudice.

Here, the district court determined that two of the four offered incidents of similar conduct were moi*e prejudicial than probative and denied the states motion to admit that evidence, but the record does not reflect that the district court weighed the probative value of this evidence against the danger of unfair prejudice. Appellant contends that the probative value of the admitted prior-conduct evidence was substantially outweighed by the danger of unfair prejudice because the state’s case was strong without the evidence, the evidence was cumulative, and the district court did not instruct the jury on how to use the evidence immediately before or after the evidence was admitted.

Strength of the State’s Case

Appellant asserts that prior-acts evidence is usually admitted only if it is needed, and, here, because the state provided the jury with a complete picture without the evidence, it was not needed to strengthen the state’s case. Normally a determination of whether the probative value outweighs the prejudicial effect would take into account the other evidence presented and the need for that testimony. See, e.g., State v. Kennedy, 585 N.W.2d 385, 391-92 (Minn.1998) (noting that Spreigl evidence may be admitted only if the other evidence is weak or inadequate and the district court should make that assessment after the state has presented all of its non -Spreigl evidence). But this is not Spreigl evidence. It is relationship evidence under Minn.Stat. 684.20, which does not require this determination. In McCoy, the supreme court pointed out that similar conduct in a domestic-abuse situation should be treated differently from traditional Spreigl evidence:

evidence of similar conduct is at least conceptually distinct from Spreigl evidence, which is governed by Rule 404(b). Spreigl evidence is oftentimes evidence of an unrelated crime against another person, which is offered for the purposes listed in Rule 404(b).... Evidence of prior domestic abuse against the alleged victim may be different from this type of Spreigl evidence for at least two reasons: it is evidence of prior conduct between the accused and the alleged victim and it may be offered to illuminate the history of the relationship, that is, to put the crime charged in the context of the relationship between the two.

McCoy, 682 N.W.2d at 159. Thus, Minn. Stat. 634.20 does not require the district court to assess the strength of the states case without the evidence of prior conduct before determining its probative value.

Cumulative Evidence

Appellant contends that the evidence was cumulative and that Spreigl evidence “should be excluded where it is merely cumulative and a subterfuge for impugning [a] defendants character or for indicating to the jury that he is a proper candidate for punishment.” State v. Billstrom, 276 Minn. 174, 179, 149 N.W.2d 281, 284-85 (1967). We disagree. First, as previously stated, this is not Spreigl evidence, it is relationship evidence. Second, the evidence was not cumulative. The testimony regarding the other incidents was brief, and the district court admitted only two incidents when the state moved for the admission of four. By limiting the number of prior incidents, the district court properly avoided admitting evidence that was unnecessary to the prosecution and that created the risk of fixating the jury on the prior incidents. See, e.g., State v. Washington, 693 N.W.2d 195, 203 (Minn.2005). Thus, the evidence was not cumulative.

Jury Instructions

Appellant also argues that it was improper for the district court not to instruct the jury on how to properly use the evidence immediately before or after the evidence of the prior acts was presented. But the district court did instruct the jury on how to use the evidence prior to jury deliberations. Any prejudicial effect was mitigated by the district courts cautionary instruction to the jury that the introduction of evidence regarding the two past incidents was for the limited purpose of assisting the jury in determining whether the appellant committed the acts charged in the complaint and that appellant was not being tried for any offense other than the charged offenses and could not be convicted based on any occurrences in the past. See Waino, 611 N.W.2d at 579 (prejudicial effect of evidence of similar prior conduct was mitigated by the district courts cautionary instruction to the jury). Thus, the district court did not error in instructing the jury on how to use the evidence along with the other jury instructions.

While the district court admitted the relationship evidence without balancing its probative value against its prejudicial effect, appellant is not entitled to a new trial unless “there is a reasonable possibility that the wrongfully admitted evidence significantly affected the verdict[.]” State v. Post, 512 N.W.2d 99, 102 n. 2 (Minn.1994). This court must determine whether there is a reasonable possibility that the verdict might have been more favorable to appellant without the evidence. Id We conclude that the evidence would have been admissible had the district court conducted the balancing test because it was more probative than prejudicial. Furthermore, it is unlikely that the relationship evidence significantly affected the verdict. The testimony about the previous incidents was brief compared to the testimony about the current incident. There was also corroborating evidence that supported the current charges against appellant, including other witnesses testimony, the pictures of the victims injuries, the evidence found in the victims bed, the 911 call, and D.N.’s demeanor following the assault. Finally, the district court gave a cautionary instruction that mitigated any prejudicial effect of the relationship evidence. Although the district court erred in not explicitly weighing the probative value of the evidence against the danger of unfair prejudice, that error was not prejudicial.

DECISION

Appellant has not demonstrated that the fact that the district court did not weigh the probative value of the evidence against the danger of unfair prejudice is reversible error. There is no record evidence establishing a reasonable possibility that the relationship evidence significantly affected the verdict; thus, appellant is not entitled to a new trial.

Affirmed.

      . Appellant was also charged with the misdemeanor offense of violating a no-contact order.


source: Caselaw Access Project

author: MINGE, Judge.

license: Public Domain

text:
    Annette M. GIBSON, et al., Respondents, v. TRUSTEES OF the MINNESOTA STATE BASIC BUILDING TRADES FRINGE BENEFITS FUNDS, Appellant.
    No. A05-39.
    Court of Appeals of Minnesota.
    Sept. 27, 2005.

      Matthew H. Beaumier, Gerlach Beaumier, Duluth, MN, for respondents.
    Stephen C. Kelly, Rosene, Haugrud & Staab, Chartered, St. Paul, MN, for appellant.
    Considered and decided by MINGE, Presiding Judge; LANSING, Judge; and HALBROOKS, Judge.
   OPINION

MINGE, Judge.

Appellant judgment creditor challenges the grant of summary judgment limiting its recovery to the fractional share of the proceeds of certain real property formerly owned by the judgment debtor as a joint tenant. Appellant also challenges the district court’s award of sanctions. Because appellant can recover only the proceeds attributable to the interest held by its debtor, and because the district court did not abuse its discretion in awarding sanctions, we affirm.

FACTS

On May 13, 2003, judgment was entered against Elaine Gibson, one of the respondents, in favor of appellant Trustees of the Minnesota State Basic Building Trades Fringe Benefit Funds (“Trustees”) in the amount of $90,948.84. This judgment was filed in Pine County District Court on July 9, 2003.

Respondent Gibson and the three other respondents in this action owned non-homestead real property in Pine County as joint tenants. This property was sold on July 11, 2003, with the sale proceeds of around $109,000 placed in escrow.

Respondents sued for a judgment declaring that Elaine Gibson was entitled only to a one-fourth interest in the real estate, that appellant was entitled only to Elaine Gibson’s one-fourth interest in the proceeds, and that the escrow agent should release the remainder of the funds to the other three respondents. Appellant filed an answer and counterclaim, requesting judgment declaring that appellant could recover the judgment against Elaine Gibson from the entire amount held in escrow, not just one-fourth of the proceeds from the sale. On May 27, 2004, respondents served appellant with a summary judgment motion, a motion for Rule 11 sanctions, and a notice that a hearing would be held on June 28, 2004. These motions were filed with the court on June 17, 2004. Appellant filed a cross-motion for summary judgment.

After a June 28, 2004, hearing, the district court granted respondents’ motions for summary judgment and sanctions. Appellant moved for reconsideration of the grant of sanctions. The district court filed a supplemental order for fees, costs, and disbursements, requiring appellant to pay respondents more than $10,000 in attorney fees, disbursements and costs. This appeal follows.

ISSUES

I. May a judgment creditor of one joint tenant recover from the entire amount of the proceeds of the sale of property owned by four joint tenants?
II. Did the district court abuse its discretion in awarding sanctions?

ANALYSIS

I.

The first issue is whether the district court erred by denying appellant’s claim that its docketed judgment against respondent Elaine Gibson constituted such a lien on real property in which she held a joint tenancy interest as to enable appellant to recover its debt from the entire proceeds of the sale of such property. When reviewing a summary judgment, an appellate court asks two questions: (1) are there any genuine issues of material fact; and (2) did the district court err in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990). Summary judgment is proper when the evidence in the record, including pleadings, depositions, answers to interrogatories, admissions on file, and affidavits show that there is no genuine issue of material fact and that either party is entitled to a judgment as a matter of law. Minn. R. Civ. P. 56.03; DLH, Inc. v. Russ, 566 N.W.2d 60, 69 (Minn.1997). “On appeal, the reviewing court must view the evidence in the light most favorable to the party against whom judgment was granted.” Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn.1993).

Appellant’s argument that all of the proceeds of the property may be used to satisfy Gibson’s debt “because [appellant’s] judgment lien attached to the entire subject property” misstates the law. When a judgment is docketed, it becomes a lien for the unpaid judgment amount on “all real property in the county then or thereafter owned by the judgment debtor.” Minn.Stat. § 548.09, subd. 1 (2004) (emphasis added). Here, it is undisputed that Gibson, as a joint tenant, did not own the entire property. Therefore, appellants’ lien could not and did not attach to the entire property; it attached to Gibson’s interest only. While the parties cite no Minnesota case limiting a judgment creditor’s ability to recover to only that portion of the proceeds of a property representing a joint-tenant judgment-debtor’s interest in the property, several cases state that a judgment creditor can recover only from the interest held by the joint-tenant debtor and indicate that, for collection purposes, the debtor’s interest excludes the interests of other co-owners. Kipp v. Sweno, 683 N.W.2d 259, 266 (Minn.2004); Gau v. Hyland, 230 Minn. 235, 241, 41 N.W.2d 444, 448 (1950); Steele v. Taylor, 1 Minn. 274, 280-81, 1 Gil. 210, 215-16 (1856). To rule otherwise would allow a joint-tenant judgment debtor to increase the reach of the judgment lien beyond the interest of the judgment debtor to the interests of other joint-tenants who are not judgment debtors, making them liable for a judgment against the debtor, when those nondebtors may have had no responsibility for the debt or resulting judgment.

In Kipp, the supreme court considered whether a judgment against a husband could be executed against a homestead that he owned in joint tenancy with his wife. 683 N.W.2d at 261. Not only does Kipp state that “a judgment creditor cannot acquire more property rights in a property than those already held by the [debtor,]” it also states that “a judgment debtor ... may not increase the reach of the judgment lien beyond the property owned by the judgment debtor.” Id. at 266. As noted above, (a) it is undisputed that Gibson, as a joint tenant, did not own the entire property, meaning appellant cannot recover against interests other than Gibson’s; and (b) to rule otherwise would be to allow a judgment debtor, here Gibson, to increase the reach of the judgment lien to the interests of the joint tenants who are not judgment debtors. And we cannot say that Kipp is distinguishable because it involves a homestead and the homestead exemption from debt collection. A homestead exemption does not identify or address the extent of a debtor’s interest in the property at issue; it limits a creditor’s ability to use an asset (a debtor’s interest in a homestead) to satisfy a debt. The factor limiting collection here is not the extent of a creditor’s ability to use an asset (here, Gibson’s interest in the property) to satisfy the debt, it is the extent of the debtor’s interest in the asset.

In Gau, the court considered whether the state could recover a debt based on an old age assistance lien granted by the recipient of assistance. 230 Minn. at 236, 41 N.W.2d at 446. The then-effective statute stated that the lien attached to all real property, including joint tenancy interests. Id. at 236-37, 41 N.W.2d at 446 (citing Minn.Stat. § 256.26 (1949)). The recipient owned her home in joint tenancy with her daughter. Id. The court stated that the lien was

a charge only upon whatever interest in real property the [old age assistance] recipient owns and, where there are several interests owned by several parties, as in cases of joint tenancy ... [the lien is] a charge only upon the interest owned by the [recipient ], and not upon the interests owned by others.

Id. at 241, 41 N.W.2d at 448 (emphasis added). The supreme court went on to hold that the state had no interest in the property because, at the death of the joint tenant/recipient, her interest in the property was extinguished, the lien was extinguished, and all rights to the property passed to the surviving joint tenant free of the lien. Id. at 245-46, 41 N.W.2d at 451. While, in Gau, the supreme court dealt with the old-age-assistance lien statute and its reference to “cases of joint tenancy” was dicta, its acknowledgement that the nondebtor joint-tenant’s interest was not attached by the lien because it was not owned by the debtor is entitled to considerable weight. See In re Wylde, 454 N.W.2d 423, 425 (Minn.1990) (holding, while dicta in supreme court’s opinion “is not conclusive evidence of the law and is not entitled to stare decisis deference[,] ... it should not be ignored, and is entitled to great weight”) (citing In re Estate of Bush, 302 Minn. 188, 208, 224 N.W.2d 489, 501 (1974)); Bush, 302 Minn. at 207, 224 N.W.2d at 501 (stating supreme court dictum is entitled to “considerable weight” if it contains “an expression of the opinion of the court”).

Similarly, in Steele, the supreme court considered the purchase of real property at an execution sale, stating that a judgment lien can only attach to the interest of the debtor, and therefore that the purchaser cannot take a greater estate than that held by the debtor. 1 Minn. at 278, 280, 1 Gil. at 213, 215.

In the case before us, we note both that (a) if Gibson had severed the joint tenancy, she would have held a tenancy in common with an interest in the property equal to her percentage ownership share, see Johnson v. Gray, 533 N.W.2d 57, 62 (Minn.App.1995) (“severance of a joint tenancy creates a tenancy in common”); 20 Am.Jur.2d Cotenancy and Joint Ownership § 23 (2005); and (b) if there is a lien on one joint tenancy interest in property that is sold at a partition sale, the lien is only a charge on the proceeds allotted to the holder of the joint tenancy based on his or her share of the total ownership, Minn. Stat. § 558.09 (2004).

These authorities consistently limit a judgment creditor’s ability to recover to the interest held by the judgment debtor and indicate that the debtor’s interest, at least for collection purposes, is exclusive of interests held by other joint tenants. Also, appellant cites no caselaw and gives no convincing reason why it should be able to collect a larger share of the property’s proceeds than Gibson could have claimed. Allowing appellant to do so would ignore and severely impair the interests of the other joint tenants based on actions taken by one joint tenant in matters unrelated to the property. Therefore, we conclude that appellant cannot obtain a greater interest in the proceeds of the property than that attributable to Gibson and affirm the district court’s summary judgment that appellant may collect from only Gibson’s interest in the sale proceeds.

II.

The second issue is whether the district court erred in imposing sanctions on appellant under Minn.Stat. § 549.211 (2004) and Minn. R. Civ. P. 11. Appellants allege that the award is substantively and procedurally defective and that the amount is unreasonable. A party and its counsel may be sanctioned if counsel violates his or her duty to ensure that “the claims, defenses, and other legal contentions are warranted by existing law or by a nonfriv-olous argument for the extension, modification, or reversal of existing law or the establishment of new law.” Minn.Stat. § 549.211, subds. 2-3; see Minn. R. Civ. P. 11.02, 11.03 (stating the same rule). Whether to award sanctions requires determining whether counsel had an objectively reasonable basis for making the fac tual or legal claim. Uselman v. Uselman, 464 N.W.2d 130, 142-43 (Minn.1990), superseded by statute on other grounds, Minn.Stat. § 549.21 (1990) (repealed 1997). The presence of bad faith can be considered when deciding whether to award sanctions. Id. at 145; Peterson v. Hinz, 605 N.W.2d 414, 417 (Minn.App.2000). An appellate court will not alter a district court’s decision regarding whether to award sanctions under these provisions absent an abuse of the district court’s discretion. Uselman, 464 N.W.2d at 145; Leonard v. Northwest Airlines, Inc., 605 N.W.2d 425, 432 (Minn.App.2000); Radloff v. First Am. Nat’l Bank of St. Cloud, 470 N.W.2d 154, 156 (Minn.App.1991). Also, because the purpose of sanctions under these authorities is deterrence, the statute and rule should be construed narrowly. Uselman, 464 N.W.2d at 142.

A. Substantive Basis for Sanctions

Sanctions should not be imposed where the law is unsettled and a party makes an argument that is not a frivolous application of the law. Leonard, 605 N.W.2d at 433. If, however, a party brings an action based on a theory that does not exist and does not make a credible argument to support a modification of existing law, sanctions can be awarded. Radloff, 470 N.W.2d at 158.

Here, settled Minnesota caselaw indicates that a judgment creditor cannot obtain a greater interest in property than that held by the judgment debtor. Kipp, 683 N.W.2d at 266; Gau, 230 Minn. at 241, 41 N.W.2d at 448. Appellant, however, essentially argued that Elaine Gibson, a joint tenant owning a one-quarter interest in the property, had a right to all of the proceeds of the sale of that property. This argument is fundamentally inconsistent with relevant caselaw, and appellant made no credible arguments distinguishing that caselaw or justifying the application of all of the proceeds of the sale to satisfy the debt of the owner of a one-quarter interest. Even if appellant subjectively believed its argument had merit, it is clear that an objective standard is used for awarding sanctions under Minn.Stat. § 549.211 and Minn. R. Civ. Proc. 11. See Uselman, 464 N.W.2d at 142-43. Here, in light of existing law and appellant’s failure to make a credible argument to modify that law, appellant’s argument does not satisfy the objectively-reasonable standard. The district court did not abuse its discretion by awarding attorney fees as a sanction.

B. Procedural Basis for Sanctions

Appellant argues that the sanctions award is procedurally defective because respondents did not, as required by Minn.Stat. § 549.211, subd. 4 and Minn. R. Civ. Proc. 11.03(a)(1), serve appellant with the motion at least 21 days before filing or presenting the motion to the court. This 21-day period is a “safe harbor” time during which a party or its attorney can correct or withdraw the offending conduct and compliance with the 21-day “safe harbor” provision is mandatory. Gibson v. Coldwell Banker Burnet, 659 N.W.2d 782, 789-90 (Minn.App.2003). But appellant failed to allege any procedural problems with respondents’ motion for sanctions at or before the hearing on the propriety of awarding sanctions.

As a result of that hearing, the district court both ruled that it would award sanctions, and directed respondents to submit a detailed billing statement and a calculation of costs and fees. In response to respondents’ financial submissions, appellant sought reconsideration of the award of sanctions, but for reasons other than respondents’ alleged failure to satisfy the 21-day requirement. Almost four months later, and after an abortive appeal, appellant first argued that respondents failed to satisfy the 21-day requirement in a spontaneous memorandum of law to the district court that again requested that the district court “reconsider” the award of sanctions.

Respondents argued to the district court that this second request for reconsideration was, among other things, improper both because appellant failed to obtain permission to make it, and because it did not address the question then at issue: the amount of sanctions to be awarded. See Minn. R. Gen. Pract. 115.11 (stating “[m]o-tions to reconsider are prohibited except by express permission of the court” and that “[r]equests to make such a motion ... shall be made only by letter to the court”); cf. Minn. R. Gen. Pract. 115.11 1997 advisory comm. cmt. (noting “[m]otions for reconsideration are not opportunities for presentation of facts or arguments available when the prior motion was considered”). Because appellant’s second request to reconsider was defective in at least two ways, the district court neither erred nor abused its discretion by not granting relief based on that motion.

C. Amount

Appellant also argues that the attorney fees actually awarded by the district court were unreasonable because the district court awarded fees based on services relating to this action beginning in August 2003, even though the complaint was not filed until January 9, 2004. The district court has “wide discretion to award the type of sanctions it deems necessary.” Kellar v. Von Holtum, 605 N.W.2d 696, 702 (Minn.2000). The purpose of sanctions is deterrence, not compensation or punishment. Uselman, 464 N.W.2d at 142. The district court has the discretion to impose a sanction in the amount sufficient to deter future litigation abuse, even if the amount is greater than the amount of attorney fees. Gibson, 659 N.W.2d at 791. The district court’s decision to award the fees related to the initial attempt to settle this dispute before formal litigation started was not an abuse of its discretion.

DECISION

Appellant, as a judgment creditor, is able to recover only against the proceeds of the interest held by Elaine Gibson, who was one of four people who owned real property as joint tenants. Because she was entitled only to one-fourth of the proceeds from the sale of the property, appellant can only recover that amount. Because appellant was essentially asserting that it was entitled to recover from the ownership interests of parties who were not debtors without providing adequate legal support for this conclusion, it was within the district court’s discretion to award sanctions against appellant for costs, fees, and disbursements related to respondents having to litigate to obtain the release of their funds.

Affirmed.

      . The parties did not litigate the status of the judgment lien with respect to the property that was sold after the judgment was docketed. However, it appears that the lien was transferred to the escrowed proceeds and that the property itself was sold free and clear of the judgment.

      . Appellant argues that if Elaine Gibson were the joint owner of a bank account, it could recover against the total value of that account. Appellant fails to provide any authority that this is a common-law rule, as opposed to a consequence that results from the contractual terms of such a bank account or statutory definition of rights of joint holders in bank accounts. See Minn.Stat. § 524.6-201, subds. 2, 4 (2004) (defining a joint bank account as a contractual deposit of funds that is payable on request to any of the designated parties). A joint tenancy in land is different from a joint bank account. There is no evidence in this proceeding that there was any contractual agreement among respondents that defined their relative interest in their jointly held real estate.

      . Although the supreme court decision in Kipp was contemporaneous with the summary judgment motion in this proceeding, the case recognizes the issue in this case as settled law. Cf. Kipp v. Sweno, 629 N.W.2d 468, 471-73 (Minn.App.2001) (implicitly recognizing in an earlier stage of Kipp that only the interest of the debtor-joint tenant may be reached by the judgment creditor), review denied (Minn. Aug. 22, 2001).


author: HUDSON, Judge.

text:
    Richard E. BRINK, Plaintiff, v. SMITH COMPANIES CONSTRUCTION, INC., defendant and third party plaintiff, Appellant, v. D.A. Distribution, Inc., d/b/a Coronado Stone, third party defendant, Respondent, Northwest Builders, Inc., et al., Third Party Defendants, Station 19 Architects, third party defendant, Respondent.
    No. A05-5.
    Court of Appeals of Minnesota.
    Sept. 27, 2005.

      Timothy P. Tobin, Kathleen M. Loucks, Timothy J. Crocker, Gislason & Hunter, LLP, Minnetonka, MN, for appellant.
    Richard M. Schultz, Circle Pines, MN, for respondent D.A. Distribution, Inc.
    Mark Bloomquist, Kristine A. Kubes, Jenneane L. Jansen, Meagher & Geer, P.L.L.P., Minneapolis, MN, for respondent Station 19 Architects.
    Considered and decided by STONEBURNER, Presiding Judge; WILLIS, Judge; and HUDSON, Judge.
   OPINION

HUDSON, Judge.

Appellant, a general contractor, challenges the district court’s grant of summary judgment for respondents, who are subcontractors, which dismissed appellant’s third-party claims for contribution and indemnity asserted against respondents. Appellant brought its third-party claims in February 2003 after it was sued for breach of warranty in December 2002. The district court concluded that the statute of repose in Minn.Stat. § 541.051, subd. 1(a) (2002), barred appellant’s third-party claims. Appellant argues that application of the statute to bar its third-party claims is a violation of its constitutional rights to due process and a remedy. Because we conclude that the statute of repose, as applied to the facts of this case, unconstitutionally violates appellant’s rights to due process and a remedy, we reverse.

FACTS

The facts in this case are undisputed. On June 2, 1989, the City of White Bear Lake issued a certificate of occupancy for a townhouse owned by appellant Smith Companies Construction, Inc. (Smith) and subsequently purchased by plaintiff Richard Brink. On December 27, 2002, plaintiff sued Smith under Minn.Stat. § 327A.02 (2002), alleging that the townhouse was not constructed in a workmanlike manner and was in violation of statutory warranties because of water intrusion. On February 3, 2003, Smith filed third-party actions for contribution and indemnity against various subcontractors, including respondents D.A. Distribution, Inc., d/b/a Coronado Stone, and Station 19 Architects. Respondents moved for summary judgment, arguing that Smith’s claims were barred by the statute of repose contained in Minn.Stat. § 541.051, subd. 1(a) (2002). Smith opposed the motions for summary judgment on the ground that subdivision 1(a) is unconstitutional as applied.

The district court granted respondents’ motions for summary judgment. This appeal follows. Respondents have also made a joint motion to strike portions of Smith’s reply brief.

ISSUES

1. Does Minn.Stat. § 541.051, subd. 1(a) (2002), unconstitutionally infringe on Smith’s due-process rights and its right to a remedy?

2. Should respondents’ joint motion to strike portions of Smith’s reply brief be granted?

ANALYSIS

Summary judgment may be granted if the pleadings, depositions, interrogatory answers, admissions, and affidavits reveal that there is no genuine issue of material fact and that a party is entitled to judgment as a matter of law. Minn. R. Civ. P. 56.03. In an appeal from a grant of summary judgment, appellate courts determine if there are any genuine issues of material fact and if the lower court erred in its application of the law. N. States Power Co. v. Minn. Metro. Council, 684 N.W.2d 485, 491 (Minn.2004).

I

Smith contends that Minn.Stat. § 541.051 (2002) is unconstitutional as applied to the facts of this case, and specifically that Minn.Stat. § 541.051, subd. 1(a), violates its due-process rights under the United States and Minnesota constitutions and its right to a remedy under the Minnesota constitution. Our evaluation of a statute’s constitutionality is a question of law subject to de novo review. Hamilton v. Comm’r of Pub. Safety, 600 N.W.2d 720, 722 (Minn.1999). We presume that Minnesota statutes are constitutional, and “our power to declare a statute unconstitutional should be exercised with extreme caution and only when absolutely necessary.” In re Haggerty, 448 N.W.2d 363, 364 (Minn.1989). “A party who challenges a Minnesota statute as unconstitutional bears the burden of establishing beyond a reasonable doubt that the statute violates some constitutional provision.” Sartori v. Harnischfeger Corp., 432 N.W.2d 448, 453 (Minn.1988). In addition, “[s]trict construction is appropriate in interpreting this statute.” Ritter v. Abbey-Etna Mach. Co., 483 N.W.2d 91, 93 (Minn.App.1992), review denied (Minn. Jun. 10, 1992).

Further, the state and federal due-process clauses provide that no person shall be deprived of life, liberty, or property without due process of law. U.S. Const. amend. XIV, § 1; Minn. Const. art. I, § 7. Minnesota’s due-process clause is identical in scope with the federal clause. Sartori, 432 N.W.2d at 453. Additionally, the Minnesota Constitution provides that “[ejvery person is entitled to a certain remedy in the laws for all injuries or wrongs which he may receive to his person, property or character.” Minn. Const. art. I, § 8.

Minn.Stat. § 541.051 applies a two-year statute of limitations and a ten-year statute of repose on claims seeking damages based on services or construction to improve real property. Id., subd. 1. The provision provides that claims may not be brought “more than two years after discovery of the injury or, in the case of an action for contribution or indemnity, accrual of the cause of action, nor, in any event shall such a cause of action accrue more than ten years after substantial completion of the construction.” Id. Construction is substantially completed on the date the owner “can occupy or use the improvement for the intended purpose.” Id. For purposes of the statute of limitations and statute of repose, “a cause of action accrues upon discovery of the injury or, in the case of an action for contribution or indemnity, upon payment of a final judgment, arbitration award, or settlement arising out of the defective and unsafe condition.” Id., subd. 1(b). We have concluded that Minn.Stat. § 541.051 applies to contribution and indemnity claims. Weston v. McWilliams & Assocs., 694 N.W.2d 558, 564 (Minn.App.2005), review granted sub nom. McWilliams v. Tappe Constr. (Minn. June 28, 2005).

If a cause of action accrues in the ninth or tenth year after substantial completion of the construction, the action may be brought within two years from the date the action accrued, “but in no event may an action be brought more than 12 years after substantial completion of the construction.” Id., subd. 2. In other words, the statute provides a 10- to 12-year statute of repose for most construction-related claims.

Plaintiff sued Smith for breach of statutory warranties under Minn.Stat. § 327A.02 (2002). At the time of the lawsuit, Minn.Stat. § 541.051, subd. 4, exempted actions brought under section 327A.02 from the 10- to 12-year statute of repose. See Minn.Stat. § 541.051, subd. 4 (“This section shall not apply to actions based on breach of the statutory warranties set forth in section 327A.02 ... provided such actions shall be brought within two years of the discovery of the breach.”). Therefore, although plaintiff sued Smith under section 327A.02 more than 13 years after the certificate of occupancy was issued, plaintiffs cause of action was not barred by the statute of repose. See id.; see also Koes v. Advanced Design, Inc., 636 N.W.2d 352, 359 (Minn.App.2001) (“[T]here is no other reference to any statute of repose that limits the time in which a cause of action must be brought for breach of warranty under § 327A.02.”), review denied (Minn. Feb. 19, 2002). But because Smith’s third-party claims against respondents were for contribution and indemnity, the actions were subject to both the two-year statute of limitations and the 10- to 12-year statute of repose, which served to bar the claims See Minn.Stat. § 541.051, subd. 1(a); Weston, 694 N.W.2d at 564. Accordingly, Smith argues that because the statute of repose as applied foreclosed its third-party claims before they accrued, Minn.Stat. § 541.051, subd. 1(a), violates its due-process rights under the state and federal constitutions and its right to a remedy under the state constitution.

Smith relies on Calder v. City of Crystal, 318 N.W.2d 838 (Minn.1982). Colder involved a lawsuit by city residents against the City of Crystal because of a defective water drainage system. Id. at 839. Fifteen months after it was sued, and one month after an amended version of Minn.Stat. § 541.051 took effect, the city brought contribution and indemnity claims against the designers and installers of the sewer system. Id. at 839-40. The supreme court concluded that the amended statute did not violate the equal-protection clause. Id. at 843. The supreme court also determined that the city’s due-process rights and its right to a remedy were not violated because it had 14 months to sue third parties for contribution and indemnity before the statute of repose became effective to bar the third-party suit. Id. at 844.

Although the Calder court did not find Minn.Stat. § 541.051 to be unconstitutional, it observed that the statute could be invalid under a different fact pattern:

If the city were barred by the statute of limitations from having a reasonable time to join third parties for contribution or indemnity, the statute would not fulfill due process requirements under our constitution. We are not required, in deciding this case, to indicate what such a reasonable time limitation should be, but a statute which does not allow any time whatever is clearly unconstitutional. However, in this case, the city was aware of the injury long before it was sued. It had 14 months after being sued in which to join these third parties .... Thus, it cannot be said that the city was denied an effective remedy by a procedural statute.

Id. (emphasis added) (citation omitted). Here, Smith had no opportunity to assert its contribution and indemnity claims against respondents because of the statute of repose, and therefore, Smith argues, Minn.Stat. § 541.051 is unconstitutional as applied. See also Bulau v. Hector Plumbing & Heating Co., 402 N.W.2d 528, 530-31 (Minn.1987) (citing Calder but holding that then-effective version of Minn.Stat. § 541.051 lawfully barred subcontractor’s contribution claim against contractor because subcontractor had approximately six months to bring claim before statute of limitations expired); Minn. Landmarks v. M.A. Mortenson Co., 466 N.W.2d 413, 415 (Minn.App.1991) (stating that “[t]he legislative purpose of [MinmStat. § 541.051] would commonly be frustrated if third-party defendants could then bar the contribution and indemnity claim by raising a statute of limitations defense against plaintiff which was unavailable to third-party plaintiff’), review denied (Minn. May 10, 1991).

On the other hand, respondents contend that: (1) the supreme court’s decision in Sartori — concluding that Minn.Stat. § 541.051 does not violate the due-process or remedies clauses — is dispositive; and (2) Colder and its progeny uniformly hold that Minn.Stat. § 541.051 is constitutional and any language to the contrary is dictum, which is not binding on this court. See Pecinovsky v. AMCO Ins. Co., 613 N.W.2d 804, 808 (Minn.App.2000) (“Dicta are expressions in a court’s opinion that go beyond the facts before the court and therefore are the individual views of the author of the opinion and not binding in subsequent cases.” (quotation omitted)), review denied (Minn. Sept. 26, 2000).

After careful review of the statute and the unique circumstances of this case, we find appellant’s position to be the more persuasive. We first note that respondents’ reliance on Sartori is misplaced. In Sarto-ri, two plaintiffs working in a mine facility were seriously injured by the operation of an overhead rail crane. 432 N.W.2d at 450. The crane was installed at the mine facility more than 18 years before the plaintiffs were injured. Id. at 451. The plaintiffs sued the crane’s manufacturer for damages and the supreme court concluded that the statute of limitations and statute of repose in Minn.Stat. § 541.051 (1980) applied to bar the claims. Id. at 453. The supreme court also concluded that the statute did not violate the state constitution’s remedies clause because the plaintiffs had a remedy: they could bring an action against the owners of the mine facility on a negligent-inspection theory. Id. at 454. The court also noted that the plaintiffs could seek workers’ compensation benefits. Id.

The supreme court further concluded that the statute did not violate due process because the legislature pursued legitimate objectives when it enacted the statute of repose, such as ensuring that subcontractors will not be sued long after they design and install improvements to real property and protecting against the unavailability of witnesses and a lack of adequate records surrounding a stale claim. Id.

Although respondents correctly observe that Sartori interpreted Minn.Stat. § 541.051 in the specific context of a constitutional challenge on due-process and remedies-clause grounds, just as we are called upon to do here, the facts in Sartori are materially different from those presented in this case. Significantly, the supreme court in Sartori only considered a claim for damages by injured plaintiffs against a crane manufacturer; this case additionally involves third-party contribution and indemnity claims. Moreover, Calder makes clear that a statute of limitations or repose that provides no time for a third-party claim for contribution or indemnity would violate the due-process and remedies clauses. 318 N.W.2d at 844.

We further observe that application of the statute of repose to bar Smith’s third-party claims would not fulfill the reasonable legislative objective enunciated in Sartori because the result would be to allow a stale claim to be asserted against Smith, while simultaneously precluding Smith from seeking contribution and indemnity against those it asserts are actually responsible for plaintiff’s damages. Accordingly, we do not read Sartori as precluding a holding that the statute of repose is unconstitutional as applied to Smith.

We similarly reject respondent’s position that Calder is inapplicable here. To the contrary, we believe that Calder is entitled to considerable weight because post-Sartori cases, such as Minnesota Landmarks, have cited Calder favorably. See Minn. Landmarks, 466 N.W.2d at 416; see also Brua v. Olson, 621 N.W.2d 472, 475 (Minn.App.2001) (“ ‘We do not believe the legislature can pass a statute allowing a substantive remedy and yet, by adopting a procedural statute of limitations, make the remedy impossible to achieve and meaningless by barring the suit from being brought before it has matured.’ ” (quoting Calder, 318 N.W.2d at 843)), review denied (Minn. Mar. 27, 2001).

Moreover, the Calder language describing fact situations in which § 541.051 would be unconstitutional, although dictum, is particularly compelling, if not dispositive, in this case. It is well settled that “dictum, if it contains an expression of the opinion of the court, is entitled to considerable weight.” In re Estate of Bush, 302 Minn. 188, 207, 224 N.W.2d 489, 501 (1974). Dictum is divided into two categories: judicial dictum and obiter dictum. Judicial dictum involves a court’s expression of its “opinion on a question directly involved and argued by counsel though not entirely necessary to the decision.” State v. Rainer, 258 Minn. 168, 177, 103 N.W.2d 389, 396 (1960). Put another way, judicial dictum constitutes “an expression emanating from the judicial conscience.” Id. at 178, 103 N.W.2d at 396. Obiter dictum is simply Latin for “something said in passing.” Black’s Law Dictionary 1100 (7th ed.1999). Judicial dictum is entitled “to much greater weight than mere obiter dictum and should not be lightly disregarded.” Rainer, 258 Minn. at 177, 103 N.W.2d at 396.

The supreme court in Calder dealt with two issues: (1) whether Minn.Stat. § 541.051 applied to bar the City of Crystal’s contribution and indemnity actions; and (2) if so, whether the statute was unconstitutional as a denial of equal protection, due process, or remedies. 318 N.W.2d at 840, 843. There can be no dispute that the issue of the constitutionality of section 541.051 was specifically raised and argued by counsel in Calder. Id. at 843-44 (“The city urges that Minn.Stat. § 541.051 (1980) contravenes Minn. Const. art. 1, § 8, as well as the due process clause of the Fifth and Fourteenth Amendments of the United States Constitution because the statute abrogates a common law right of action without providing a reasonable substitute.”). Thus the dictum expressed the supreme court’s opinion on a question directly involved and argued by counsel. The dictum was not absolutely necessary to the supreme court’s decision only because the city had 14 months to assert its contribution and indemnity claims before running afoul of the statute of repose. Id. at 844. Because the supreme court stated its view in unequivocal language, and post-Sartori cases have cited this language, we give considerable weight to Calder’s judicial dictum.

Finally, respondents contend that, like the plaintiffs in Sartori, Smith possessed an effective remedy: it could have negotiated express warranties with subcontractors extending or abolishing the statute of repose before commencement of the project. According to respondents, if Smith had negotiated these express warranties, it could have brought its third-party contribution and indemnity claims. But respondents’ argument does not specifically address the application of the remedies clause. We acknowledge that an ounce of prevention may be worth a pound of cure, but there is a difference between a preventative measure and a remedy under the state constitution. While it is true that demanding warranties from the subcontractors may have prevented Smith from being in its current position, the opportunity for such prevention is not a remedy. Additionally, we observe that Smith’s predicament — being unable to enforce its third-party rights despite promptly moving to protect those rights in February 2003, a mere two months after plaintiffs initial lawsuit in December 2002 — violates traditional notions of fairness and equity.

Following the rationale and judicial dictum in Calder and based on the unique facts of this case, we conclude that the statute of repose contained in Minn.Stat. § 541.051, subd. 1(a), as applied to Smith’s third-party claims, unconstitutionally deprives Smith of its due-process rights under the federal and state constitutions and its right to a remedy under the state constitution.

Because of a recent legislative amendment, the fact scenario presented by this case will likely not be repeated in the future. In 2004, the legislature amended Minn.Stat. § 541.051, subd. 4, which previously provided that the 10- to 12-year statute of repose did not apply to actions based on Minn.Stat. § 327A.02. See 2004 Minn. Laws ch. 196, § 1. Thus, actions for breach of warranties provided under section 327A.02 that are commenced after the effective date of the 2004 amendment are subject both to the two-year statute of limitations — beginning at the point when the breach was discovered — and the statute of repose in subdivisions 1 and 2. See Minn.Stat. § 541.051, subd. 4 (2004). As a result of the 2004 amendment, general contractors sued for breach of statutory warranties in the future will not face Smith’s conundrum because the initial lawsuit, if brought more than 12 years after substantial completion of the construction, will be barred by the statute of repose.

II

Smith’s reply brief contains a section arguing that Minn.Stat. § 541.051 is unconstitutional on equal-protection grounds. Respondents filed a joint motion to strike this portion of the brief on the grounds that appellant raised this argument for the first time on appeal and in a reply brief. Generally, this court will not consider matters not argued and considered in the district court. Thiele v. Stich, 425 N.W.2d 580, 582 (Minn.1988). Additionally, a “reply brief must be confined to new matter raised in the brief of the respondent.” Minn. R. Civ.App. P. 128.02, subd. 3. There is no evidence in the record that appellant raised an equal-protection challenge to the statute before the district court, and respondents did not affirmatively raise the issue in their briefs. We therefore grant the motion to strike and decline to address Smith’s equal-protection argument.

DECISION

Because application of the statute of repose in Minn.Stat. § 541.051, subd. 1(a) (2002), violates Smith’s due-process rights and its right to a remedy, we reverse the district court’s grant of summary judgment to respondents. We emphasize that the statute of repose found in Minn.Stat. § 541.051, subd. 1(a), is unconstitutional only as applied to Smith’s third-party contribution and indemnity claims. We grant respondents’ joint motion to strike portions of Smith’s reply brief.

Reversed: motion granted.

      . Minn.Stat. § 541.051, subd. 4, was amended in 2004. 2004 Minn. Laws ch. 196, § 1. Because the dispute leading to this appeal arose before the amendment was operative, and because the amendment would impact this appeal, we apply the 2002 version of the statute in this appeal. See Interstate Power Co. v. Nobles County Bd. of Comm’rs, 617 N.W.2d 566, 575 (Minn.2000) (observing that appellate courts are to apply the law in effect at the time of judgment, with the exception of "when rights affected by the amended law were vested before the change in the law”).

      . The supreme court had previously concluded that an earlier version of Minn.Stat. § 541.051 violated the equal-protection clause. Pac. Indem. Co. v. Thompson-Yaeger, Inc., 260 N.W.2d 548, 555 (Minn.1977). The legislature then amended the statute in 1980 to cure that constitutional defect. Calder, 318 N.W.2d at 843.

      . At the time of the lawsuit, Minn.Stat. § 541.051 (1980) contained a statute of repose of 15 years. Sartori, 432 N.W.2d at 451.