author: HANSON, Justice. MEYER, Justice PAGE, Justice ANDERSON, PAUL H., Justice

text:
    William B. WESTON, et al., Plaintiffs, v. McWILLIAMS & ASSOCIATES, INC., d/b/a Top Value Homes, Respondent, v. Tappe Construction, Appellant, Panelcraft of Minnesota, Inc., et al., Appellants, Windsor Window Company, Appellant.
    No. A04-1251.
    Supreme Court of Minnesota.
    June 29, 2006.

      Michael D. Barrett, Andrea E. Reisbord, Cousineau, McGuire & Anderson Chartered, Minneapolis, MN, for Appellant Tappe Construction.
    Michael P. North, Arthur, Chapman, Kettering, Smetak & Pikala, P.A., Minneapolis, MN, for Appellant Windsor Window Company.
    Michael Tomsche, Teresa Gumerman, Tomsche, Sonnesyn & Tomsche, P.A., for Appellants Jeffrey Johnson and Panelcraft of Minnesota, Inc.
    Scott M. Rusert, Andrea D. Kiehl, Flynn, Gaskins & Bennett, L.L.P., Minneapolis, MN, for Respondent.
   OPINION

HANSON, Justice.

This appeal requires us to determine the proper application of the statute of repose to contribution and indemnity claims by a general contractor against subcontractors or material suppliers arising out of an improvement to real property. The statute of repose applicable here is the 2002 version of section 541.051, which provides in part as follows:

Except where fraud is involved, no action by any person in contract, tort, or otherwise to recover damages for any injury to property, real or personal, or for bodily injury or wrongful death, arising out of the defective and unsafe condition of an improvement to real property, nor any action for contribution or indemnity for damages sustained on account of the injury, shall be brought against any person performing or furnishing the design, planning, supervision, materials, or observation of construction or construction of the improvement to real property or against the owner of the real property 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. Date of substantial completion shall be determined by the date when construction is sufficiently completed so that the owner or the owner’s representative can occupy or use the improvement for the intended purpose.

Minn.Stat. § 541.051, subd. 1(a) (2002).

Respondent McWilliams & Associates, Inc., d/b/a Top Value Homes, a general contractor (hereinafter “Top Value”), was sued in May 2003 for damages when a home it completed in July 1993 developed water-intrusion and mold problems. In March 2004, Top Value brought contribution and indemnity claims against subcontractors and a supplier, who had contributed to the construction of the home. The Dakota County District Court held that Top Value’s contribution and indemnity claims were extinguished by the statute of repose and granted summary judgment to the subcontractors and supplier. The court of appeals reversed, holding that claims for contribution and indemnity that have not otherwise accrued within 10 years of completion of construction will be deemed to have accrued in the tenth year, thus triggering the extension feature of subdivision 2 of section 541.051 that provides as follows:

Notwithstanding the provisions of subdivision 1, in the case of an action which accrues during the ninth or tenth year after substantial completion of the construction, an action to recover damages may be brought within two years after the date on which the action accrued, but in no event may an action be brought more than 12 years after substantial completion of the construction.

Weston v. McWilliams & Assocs., 694 N.W.2d 558, 562-64 (Minn.App.2005). We reverse the court of appeals and reinstate the district court’s summary judgment.

The parties do not dispute the underlying facts. William Weston contracted with Top Value to build a home in Eagan. Tappe Construction was the framing, carpentry, and window-installation subcontractor; Panelcraft installed the siding; and Windsor Window Company manufactured the windows. Construction was substantially completed on July 20,1993, when a certificate of occupancy was issued.

Weston submitted evidence of inspections and testing on the home in the spring and summer of 2002, which revealed water-intrusion problems that had caused the growth of mold in the walls and allegedly consequent health problems for Weston and his family. The testing submitted by Weston indicated that the water problems were the result of construction-related defects.

In May 2003, Weston and his family brought suit against Top Value for damages arising out of the allegedly defective and unsafe condition of the home. This was approximately two months before the end of the 10-year statutory repose period for such claims, which reads: “[N]or, in any event shall such a cause of action accrue more than ten years after substantial completion of the construction.” Minn. Stat. § 541.051, subd. 1(a). The words “such a cause of action” include Weston’s claim because they refer back, in part, to an “action by any person * * ⅜ to recover damages for any injury to property * * * or for bodily injury * * * arising out of the defective and unsafe condition of an improvement to real property * * Id.

Top Value answered Weston’s complaint on January 30, 2004, alleging that its subcontractors and material supplier caused any damages suffered by Weston. In March and April 2004, Top Value served Tappe, Panelcraft, and Windsor (hereinafter referred to collectively as “Tappe”) with third-party complaints, seeking contribution and indemnity. Tappe moved for summary judgment on the grounds that Top Value’s contribution and indemnity action was extinguished because it was not brought within the 10-year repose period.

The district court granted the motions and dismissed Top Value’s claims, noting that:

A statute of repose operates to preclude the existence of an available remedy. * * * Despite the fact that Top Value’s cause of action had not yet accrued, its claims for indemnity and contribution were extinguished on July 20, 2003.

The court of appeals reversed, determining that when a contribution or indemnity claim actually accrues within two years after the 10-year statutory repose period, the claim should be deemed as a matter of law to have accrued at the end of the tenth year following completion of construction (i.e., the last day of the repose period). Weston, 694 N.W.2d at 562, 564. The court held that Top Value’s contribution and indemnity claims could be timely brought in the eleventh or twelfth year after completion of construction. Id. We granted Tappe’s petition for further review.

I.

When the district court grants summary judgment based on the application of a statute to undisputed facts, the result is a legal conclusion that we review de novo. Lefto v. Hoggsbreath Enters., Inc., 581 N.W.2d 855, 856 (Minn.1998). The interpretation of a statute is a question of law that this court also reviews de novo. Olmanson v. LeSueur County, 693 N.W.2d 876, 879 (Minn.2005). Our first task is to determine whether the statute needs interpreting — that is, whether the language of the statute is ambiguous. Molloy v. Meier, 679 N.W.2d 711, 723 (Minn.2004).

The court of appeals did not state that the repose provision of section 541.051 was ambiguous, but did say that the provision “begs for clarity.” Weston, 694 N.W.2d at 562. The court observed that section 541.051 deviates from the standard statute of repose by using accrual to mark the end point of the repose period instead of requiring that an action be brought within a certain number of years. Weston, 694 N.W.2d at 561-62. The court concluded that this feature presented the possibility of conflicting inferences: either that “no suit can ever be brought if the claim accrues in fact in year eleven or twelve,” or that the “ripening of the cause of action is deemed by law to occur at the end of the tenth year, and that no action on the claim can be brought after the end of year twelve.” Id. at 562. The court determined that the second inference is compelling and must be declared as a matter of law. Id.

We conclude that the court of appeals read too much into the word “accrue” because the plain language of the statute is not ambiguous. See Owens v. Water Gremlin Co., 605 N.W.2d 733, 736 (Minn.2000) (“[I]f the words of the statute are ‘clear and free from all ambiguity,’ further construction is neither necessary nor permitted” (quoting Minn.Stat. § 645.12 (2004))). We have specifically noted with regard to section 541.051 that “we must * ⅜ ⅜ s^rjve gjve effect to the plain meaning of the words of the statute without resort to technical legal constructions of its terms.” Pacific Indem. Co. v. Thompson-Yaeger, Inc., 260 N.W.2d 548, 554 (Minn.1977).

In effect, the court of appeals’ interpretation would convert the negative statement of the statute — that “a cause of action [shall not] accrue more than ten years after substantial completion of the construction” — into a positive statement — that a cause of action for contribution or indemnity shall accrue no later than ten years after completion of construction. This conversion goes beyond interpretation and actually modifies the words of the statute.

The reference to “accrues” in the repose provision must be read together with the definition that is given later in section 541.051:

For purposes of paragraph (a), a cause of action accrues upon discovery of the injury or, in the ease 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.

Minn.Stat. § 541.051, subd. 1(b) (2002). This definition determines when a contribution or indemnity claim will accrue. It does not permit such accrual to be deemed by law to have occurred at some time prior to payment.

Further, the court of appeals’ interpretation is inconsistent with the extension of the repose period for claims that accrue in the ninth and tenth year after completion of construction. The repose provision applies not only to contribution and indemnity claims, but also to the underlying injury claim of the home owner. See Minn.Stat. § 541.051, subd. 1(a). That injury claim accrues on discovery of the injury. See id. Because the repose provision requires that a cause of action accrue within the statutory period, injury claims would not actually accrue unless they were discovered within the 10-year period. For consistency’s sake, the rationale of the court of appeals would suggest that an injury claim that had not accrued within the repose period would likewise be deemed by law to have accrued at the end of the tenth year. If both the injury and the contribution and indemnity claims are deemed to have accrued in the tenth year, the period of repose would necessarily be extended from a 10-year period to a 12-year period. If the legislature had intended this result, it could have simply enacted a 12-year statute of repose.

It is true that the legislature’s decision to define accrual one way for injury claims and another way for contribution and indemnity claims presents the possibility that an injury claim, which will necessarily accrue first, could accrue within the repose period while a contribution or indemnity claim involving the same improvement to real property would not accrue until after the repose period. Top Value argues that such a result is absurd and is in derogation of the presumption that “the legislature does not intend a result that is absurd, impossible of execution, or unreasonable.” Minn.Stat. § 645.17(1) (2004). But this rule of construction only operates where the words of a statute are ambiguous; the rule cannot generally be used to override the plain language of a statute. Hyatt v. Anoka Police Dep’t, 691 N.W.2d 824, 827-28 (Minn.2005). We can “disregard a statute’s plain meaning only in rare cases where the plain meaning ‘utterly confounds a clear legislative purpose.’ ” Id. at 827 (quoting Mut. Serv. Cas. Ins. Co. v. League of Minn. Cities, 659 N.W.2d 755, 760 (Minn.2003)). Here, the plain meaning of accrual does not confound a clear legislative purpose; to the contrary, it accomplishes the clear legislative purpose of preventing the accrual of a cause of action after a specified period of time from the completion of construction.

Top Value also argues that it had no control over when it could bring its contribution and indemnity claims because they are derivative of the underlying injury action and it had no control over when the injury action was commenced. That argument presents a distinction that the legislature could have recognized, but did not. We agree with Tappe’s assertion that, had the legislature wanted to declare a separate and different repose period for contribution and indemnity claims, it could have done so explicitly. In that connection, we note that the Wisconsin legislature enacted a similar statute of repose but provided an indefinite time for a contribution claim to be brought if the underlying injury action is brought late in the repose period. See Wis. Stat. § 893.89(3)(c) (2004) (providing “An action for contribution is not barred due to the accrual of the cause of action for contribution beyond the end of the exposure period if the underlying action that the contribution action is based on is extended under par. (b),” (which extends the period of repose if the damage is sustained during the period from the first day of the eighth year to the last day of the tenth year)).

Finally, we note that Top Value did not press before us the court of appeals’ interpretation of the repose provision. It argues, instead, that the provision should be read to apply only to underlying injury actions, not to contribution or indemnity claims. Top Value suggests that the use of the singular “such cause of action” in the repose provision indicates that it applies only to the underlying injury action. The court of appeals dismissed this interpretation as “without merit.” Weston, 694 N.W.2d at 564. We agree with the court of appeals’ conclusion because the words “such a cause of action” follow the description of both an injury action and a contribution or indemnity action. See Minn. Stat. § 541.051, subd. 1(a).

For these reasons, we hold that the repose provision of section 541.051, subd. 1(a), bars a contribution and indemnity claim that has not accrued (i.e., where the principal claim has not been paid) and has not been brought within the 10 years from the completion of the construction.

II.

Top Value argues that an interpretation of the statute that bars its contribution and indemnity claim violates the Due Process Clauses of the United States and Minnesota Constitutions. Without naming it explicitly, Top Value also presents arguments implicating the Remedies Clause of the Minnesota Constitution.

Preliminarily, we note that Top Value failed to notify the attorney general of its constitutional challenge, as required by Minn. R. Civ. P. 24.04 and Minn. R. CivApp. P. 144. Top Value asserts that the requirement does not apply because it is not arguing that the statute is unconstitutional on its face, only as interpreted by the district court. But we have said that “it is extremely doubtful we would hold a statute unconstitutional if the attorney general had not been properly notified.” Sartori v. Harnischfeger Corp., 432 N.W.2d 448, 452 (Minn.1988). Further, Top Value failed to raise its argument either at the district court or to the court of appeals. Generally, a reviewing court should not consider issues that were neither considered in the district court nor adequately briefed on appeal. Broehm v. Mayo Clinic Rochester, 690 N.W.2d 721, 728 (Minn.2005) (citing Thiele v. Stich, 425 N.W.2d 580, 582-83 (Minn.1988)). Nonetheless, we have the latitude to address any matter “as the interest of justice may require,” Minn. R. Civ.App. P. 103.04, and the constitutionality of section 541.051 as applied to Top Value’s contribution-indemnity claims merits our consideration.

With regard to the constitutional arguments, we think it important to differentiate between statutes of repose and statutes of limitations. The constitutional legitimacy of statutes of repose stems from their substantive, rather than procedural, nature: a statute of limitations limits the time within which a party can pursue a remedy (that is, it is a procedural limit), whereas a statute of repose limits the time within which a party can acquire a cause of action (thus it is a substantive limit). See Hodder v. Goodyear Tire & Rubber Co., 426 N.W.2d 826, 830 n. 3 (Minn.1988) (discussing the operation of a statute of repose to bar recovery even before the cause of action accrues).

[A] statute [of repose] is intended to terminate the possibility of liability after a defined period of time, regardless of the potential plaintiffs lack of knowledge of his or her cause of action. Such statutes reflect the legislative conclusion that a point in time arrives beyond which a potential defendant should be immune from liability for past conduct.

51 Am.Jur.2d Limitation of Actions § 18 (2000) (footnotes omitted).

This difference between statutes of repose and statutes of limitations is significant when either is challenged as being violative of state remedies or due process clauses. Because statutes of limitations are procedural in nature, intended to deny a remedy even though a right has vested, they typically are not triggered until the cause of action has accrued. See Wichelman v. Messner, 250 Minn. 88, 108, 83 N.W.2d 800, 816 (1957). For this reason, one focus of a constitutional challenge to a statute of limitations is whether it allows a reasonable time after the cause of action accrues for the party to enforce her rights. Id. at 108-09, 83 N.W.2d at 816-17.

A statute of repose, on the other hand, is intended to eliminate the cause of action. In at least the majority of jurisdictions, it has been held that such statutes may constitutionally eliminate causes of action even before they accrue. See, e.g., Kanne v. Bulkley, 306 Ill.App.3d 1036, 240 Ill.Dec. 97, 715 N.E.2d 784, 789-90 (1999); McIntosh v. Melroe Co., 729 N.E.2d 972, 978 (Ind.2000); Plummer v. Gillieson, 44 Mass.App.Ct. 578, 692 N.E.2d 528, 532 (1998); O’Brien v. Hazelet & Erdal, 410 Mich. 1, 299 N.W.2d 336, 341-42 (1980); Schendt v. Dewey, 246 Neb. 573, 520 N.W.2d 541, 547 (1994); Craftsman Builder’s Supply, Inc. v. Butler Mfg. Co., 974 P.2d 1194, 1201 (Utah 1999).

Particularly instructive on the distinction between statutes of limitations and statutes of repose is the Indiana Supreme Court’s decision in McIntosh. There, the court considered the validity of the state’s Products Liability Act that contained a statute of repose barring product liability claims for injuries sustained more than 10 years after the product is delivered to the initial consumer. McIntosh, 729 N.E.2d at 973. The court distinguished that statute of repose from the statute of limitations contained in Indiana’s Medical Malpractice Act. McIntosh, 729 N.E.2d at 978. The latter barred claims where the injury had occurred before the two-year period of limitations but had not been discovered within the two-year period. Martin v. Richey 711 N.E.2d 1273, 1278 (Ind.1999). Although the Indiana court in Martin had held that the application of the medical statute of limitations to bar an accrued claim before it reasonably could be discovered was an unconstitutional impairment of an existing remedy, in McIntosh it distinguished the products statute of repose because it extinguished any cause of action before it accrued. Martin, 711 N.E.2d at 1285; McIntosh, 729 N.E.2d at 978. The court said:

The holding in Martin v. Richey is that a claim that exists cannot be barred before it is knowable. Here, we are dealing with a rule of law that says, in effect, that products that produce no injury for ten years are no longer subject to claims under the Product Liability Act. Whatever the wisdom of such a rule, in our view, it is a matter well within the legislature’s ability to regulate.

Id. at 979.

The court further concluded that a statute of repose may legitimately eliminate a common law right where such elimination is a “rational means to achieve a legitimate legislative goal.” Id. at 979. The court said:

The statute of repose represents a determination by the General Assembly that an injury occurring ten years after the product has been in use is not a legally cognizable “injury” that is to be remedied by the courts. This decision was based on its apparent conclusion that after a decade of use, product failures are “due to reasons not fairly laid at the manufacturer’s door.” The statute also serves the public policy concerns of reliability and availability of evidence after long periods of time, and the ability of manufacturers to plan their affairs without the potential for unknown liability. The statute of repose is rationally related to meeting these legitimate legislative goals. It provides certainty and finality with a bright line bar to liability ten years after a product’s first use. It is also rationally related to the General Assembly’s reasonable determination that, in the vast majority of cases, failure of products over ten years old is due to wear and tear or other causes not the fault of the manufacturer, and the substantial interests already identified warrant establishing a bright line after which no claim is created.

Id. at 980 (citations omitted).

This majority rule, upholding the constitutionality of statutes of repose as applied to a variety of causes of action, has also been recognized in connection with statutes of repose for claims arising from the improvement to real property. As the Minnesota legislature has done in section 541.051, “[legislatures in almost every state have enacted statutes of repose imposing time limitations upon lawsuits against architects, engineers and builders for injury to persons, injury to property or death arising out of the defective or unsafe condition of an improvement to real property.” Martha Ratnoff Fleisher, Annotation, Validity, as to Claim Alleging Design or Building Defects, of Statute Imposing Time Limitations Upon Action Against Architect, Engineer, or Builder for Injury or Death Arising Out of Defective or Unsafe Condition of Improvement to Real Property, 5 A.L.R. 6th 497, 516 (2005). Such statutes generally “bar * * * claims by owners and third parties a designated number of years following substantial completion of the improvement or following another event unrelated to accrual of the cause of action.” Id.

These statutes have generally been applied to bar contribution and indemnity claims. See, e.g., Eastern Iowa Propane, Ltd. v. Honeywell, Inc., 652 N.W.2d 462, 463, 466 (Iowa 2002) (applying 15-year statute of repose to bar contribution-indemnity claim while the underlying claim went forward). And they have been upheld, in the face of challenges under state due process and remedies clauses, in several jurisdictions. See Fleisher, supra, 5 A.L.R. 6th § 4-5, at 522-39 (open courts/remedies clause); § 7, at 541-54 (due process). Thus in Blaske v. Smith & Entzeroth, Inc., 821 S.W.2d 822, 832-35 (Mo.1991), the Missouri Supreme Court upheld the statute of repose protecting architects, engineers and persons who provided construction services against due process and access to court challenges. As to the access to courts (remedies) clause, the court determined that because the legislature could totally eliminate the cause of action, “the legislature can eliminate such a cause of action from and after 10 years following the completion of construction.” Id. at 833. The court said that the statute of repose “does not bar the courts to a person with a valid cause of action; rather, it modifies the common law to provide that there is no such cause of action.” Id. As to the due process clause, the court said:

A litigant does not have a vested property right in a cause of action before it accrues. Thus, no due process violation occurs if this non-property right is eliminated by a change in the law.

Id. at 834. The court concluded:

It is understandable that the plaintiffs would disagree with the decision of the legislature to grant immunity to designers and builders from and after 10 years following the completion of construction; however, this Court cannot say that the legislature’s decision to do so does not rationally further a legitimate state objective.

Id. at 835.

We now turn to our case law under section 541.051. After section 541.051 was amended in 1980 to address the equal-protection deficiencies we described in Po-cific Indem. Co,, it has faced challenges on Due Process and Remedies Clause grounds. In each case, we determined that the legitimate legislative objective underlying the repose provision was sufficient to support its constitutionality. See Sartori, 432 N.W.2d at 454 (stating that the legislative objective behind the statute was “reasonable * * * and should not be lightly disregarded by this court absent a clear abuse”); Calder, 318 N.W.2d at 843-44 (holding the statute constitutional). But our analysis has not been completely satisfactory because it has, at times, failed to properly distinguish between the limitations and repose provisions of section 541.051 and intermingles principles applicable from one to the other.

In Calder, although we were asked to enforce the statute of repose provision in section 541.051, our analysis relied significantly on principles that are only applicable to statutes of limitation. We determined that the repose provision did not violate the Due Process or Equal Protection Clauses because the defendant had a reasonable time after being sued (14 months) to bring its contribution claim. Calder, 318 N.W.2d at 844. We declined to define a period that would be constitutionally unreasonable, but cautioned that “a statute which does not allow any time whatever [to join third parties] is clearly unconstitutional.” Id. We also observed,

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.

Id. at 844. All of these comments were dicta. As we have seen, the requirement of a reasonable time to bring a claim is only relevant to the application of a statute of limitations after a cause of action has already accrued. And the comment about the statutory remedy had no application because the underlying claim in Colder was based in common law negligence and a contribution claim is an equitable action. Id. at 839, 841. As a result, Colder is best limited to its particular facts.

Colder did appropriately reject the argument that the statute of repose provision of section 541.051 violated due process because it “abrogates a common law right of action without providing a reasonable substitute.” Colder, 318 N.W.2d at 843-44. We cited Tri-State Insurance Co. of Minnesota v. Bouma, 306 N.W.2d 564, 566 (Minn.1981), which rejected that argument as to Minn.Stat. § 176.179 (1974) (eliminating any right to seek a refund of the overpayment of worker’s compensation). In Bouma we said:

[W]e have recognized that the legislature could constitutionally abrogate a common law right without providing a reasonable substitute if it is pursuing a permissible, legitimate legislative objective.

306 N.W.2d at 566. But Colder, through citing this language, did not carry this holding from Bouma forward to any conclusion. Colder, 318 N.W.2d at 844.

In Sartori, we began our remedies and due process analyses with the discussion in Colder that the legislature may abrogate a common law right without providing a substitute if it is pursuing a legitimate legislative objective. Sartori, 432 N.W.2d at 453. And we held that the legislative objective of section 541.051, to “avoid litigation and stale claims which could occur many years after an improvement to real property has been designed, manufactured and installed,” was a legitimate one. Sartori, 432 N.W.2d at 454. But we may have confused this holding by emphasizing that Sartori had alternative remedies. See id. That discussion of alternative remedies was not necessary to the holding that the legislature could eliminate a common-law cause of action without providing a substitute if it were pursuing a legitimate legislative objective, and it does not control this case.

We hold that the repose provision of section 541.051 is based on a legitimate legislative objective and does not violate the Due Process or Remedies Clauses of the Minnesota Constitution. Because we see no reason to differentiate between the Due Process Clause of the Minnesota Constitution and that of the United State Constitution as applied to these facts, we likewise hold that the repose provision of section 541.051 does not violate federal due process.

III.

Finally, Top Value argues that principles of equity and justice should preclude reading the statute to cut off contribution and indemnity claims before they accrue. The argument, however, is premised on the idea that the statute is ambiguous, which we have determined it is not. Top Value did not present an equal protection challenge to the statute.

Top Value supports its equity argument with this court’s statement in City of Will-mar v. Short-ElliotP-Hendrickson, Inc.:

As a practical matter, a party may lose the protection afforded by the statute of limitations against a plaintiffs claim when there are other defendants who do not have a statute of limitations defense to plaintiffs claims; but equity deems it more important that a defendant not evade its liability at the literal expense of a codefendant.

512 N.W.2d 872, 875 (Minn.1994). City of Willmar is inapposite because the issue was whether the crossclaim for contribution and indemnity could go forward when the underlying action had been barred by the statute of limitations. Id. at 873. Nonetheless, Top Value argues that the City of Willmar should inform us because it concerned a derivative claim that, like Top Value’s contribution and indemnity claims, depends on the filing of a damages claim by the plaintiff, an event over which the defendant has no control.

Without doubt the consequences of the district court’s plain reading of the statute are prejudicial to Top Value, but that prejudice is the natural consequence of the statute of repose that the legislature has chosen to enact.

Reversed and remanded to the district court for reinstatement of its summary judgment orders.

MEYER, Justice

(concurring).

I concur with the majority’s determination that the builders’ statute of repose is unambiguous and that it bars Top Value’s claims for contribution and indemnity. But I respectfully disagree with the majority’s conclusion that the statute is constitutionally sound in all applications. I would limit our holding with regard to the constitutionality of the statute to the facts of the case before us and would conclude that because Top Value had a reasonable opportunity to bring its claims before the statute of repose period ended, its Due Process and Remedies Clause arguments must fail.

I write separately because under different facts the majority’s holding would allow a suit for damages to be brought as late as the end of the twelfth year after completion of construction, but disallow a contribution and indemnity claim arising out of the same damages claim. This result is not permitted by this court’s precedent and the constitutional principles on which that precedent rests.

In Calder v. City of Crystal, we observed that a statute of limitations that prevented a liable party from having a reasonable time to join third parties for contribution or indemnity would not fulfill due process requirements. 318 N.W.2d 838, 844 (Minn.1982). We noted that “a statute which does not allow any time whatever [to bring a contribution or indemnity claim] is clearly unconstitutional.” Id. We further articulated our understanding that the legislature could not constitutionally “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.” Id.

The majority asserts that we clarified Calder in Sartori, when we held that the legislature could in fact abrogate a common law right of action without violating constitutional Due Process or Remedies Clauses if it does so to achieve a legitimate legislative objective. See Sartori, 432 N.W.2d at 453. In Sartori we found that the goal achieved by Minn.Stat. § 541.051 was a legitimate one. 432 N.W.2d at 454. We said:

The statutory limitation period is designed to eliminate suits against architects, designers and contractors who have completed the work, turned the improvement to real property over to the owners, and no longer have any interest or control in it. By setting forth a * * * period of repose, the statute helps avoid litigation and stale claims which could occur many years after an improvement to real property has been designed, manufactured and installed. The lapse of time between completion of an improvement and initiation of a suit often results in the una-variability of witnesses, memory loss and a lack of adequate records. Another problem particularly crucial is the potential application of current improved state-of-the-art standards to cases where the installation and design of an improvement took place many years ago. Minn.Stat. § 541.051 (1980) was designed to eliminate these problems by placing a finite period of time in which actions against certain parties may be brought. We hold this objective is a reasonable legislative objective and should not be lightly disregarded by this court absent a clear abuse.

Id. (footnote omitted). From this, coupled with its examination of case law from other jurisdictions, the majority concludes that Minn.Stat. § 541.051 is virtually immune to challenge on Due Process or Remedies Clause grounds.

I believe that the majority goes too far by comprehensively dismissing challenges to the statute on Due Process or Remedies Clause grounds. Sartori’s discussion of the availability of alternative remedies (to an injured worker in that case — a direct action against the property owner for negligent inspection and a worker’s compensation claim) suggests our lack of willingness to altogether shield the builders’ statute of repose from challenge on constitutional (Due Process and Remedies Clause) grounds — the unprecedented step that the majority now takes. See Sartori, 432 N.W.2d at 454.

I would focus my analysis on the legitimate legislative purpose recognized in Sar-tori and principles of due process, and not look to the case law of other jurisdictions. Generally, the purpose of the statute supports the cutting off of claims at some certain point after completion of construction to prevent the bringing of stale claims. I would conclude that the purpose of the statute is not served by cutting off claims against one class of defendants (subcontractors, materials suppliers, etc.) and not others (general contractors). As Top Value points out, its claims against its materials suppliers and subcontractors, brought during the pendency of the damages suit, are no more or less stale than the homeowners’ underlying damages claim.

Due process and the Remedies Clause provide the roots for our enduring holding that a “common-law right of action may be abrogated without providing a reasonable substitute if a permissible legislative objective is pursued.” Haney v. Int'l Harvester Co., 294 Minn. 375, 385, 201 N.W.2d 140, 146 (1972). Contribution and indemnity claims are “venerable equity actions and part of our state’s common law.” City of Willmar v. Short-Elliott-Hendrickson, Inc., 512 N.W.2d 872, 874 (Minn.1994); see also Lambertson v. Cincinnati Corp., 312 Minn. 114, 122, 257 N.W.2d 679, 685 (1977) (stating “Contribution and indemnity are variant common-law remedies used to secure restitution and fair apportionment of loss among those whose activities combine to produce injury.”); Grothe v. Shaffer, 305 Minn. 17, 25, 232 N.W.2d 227, 233 (1975) (stating, “The third-party claim is thus contingent on the outcome of the original action and upon the payment by one joint tortfeasor of more than his fair share of the common obligation.” (emphasis added)). Considering all of this jurisprudence, I would not comprehensively bar contribution or indemnity claims when the underlying cause of action for damages goes forward.

Applying these principles to this case, I would nevertheless conclude that Top Value’s contribution and indemnity claim is time-barred because it could, by virtue of our rules allowing and policy encouraging early joinder of third parties, have brought contribution and indemnity claims before the 10-year period expired. See Calder, 318 N.W.2d at 844; Minn. R. Civ. P. 14.01. This is not to say that I find that two months (roughly the window of time from when homeowner Weston filed and served his suit on Top Value to the end of the repose period) is necessarily a sufficient period for due process purposes. See Calder, 318 N.W.2d at 844 (declining to defíne a constitutionally reasonable time for bringing a claim). But here the record suggests that Top Value knew or should have known that there were water-intrusion and mold problems with the Weston home as early as August 2002. I find it implausible that at the time Weston’s complaint was served Top Value had to begin an investigation into the potential source of the problems (i.e., which subcontractors’ work or suppliers’ materials may be faulty) such that it was prevented from bringing its contribution and indemnity claims earlier for lack of a good faith basis. See Minn. R. Civ. P. 11; Minn.Stat. § 549.211 (2004).

That different facts could present a case where a builder had no time to bring contribution and indemnity claims while the underlying damages claim goes forward is not mere speculation, but is born out by case law. See Brink v. Smith Cos. Constr., Inc., 703 N.W.2d 871, 879 (Minn.App.2005) (finding the repose provision of section 541.051 unconstitutional when it bars a contribution and indemnity claim based on a viable statutory warranty claim). Such a factual circumstance is not before us, though, and for that reason we would do well to limit our holding.

PAGE, Justice

(concurring).

I join in the concurrence of Justice Meyer.

ANDERSON, PAUL H., Justice

(concurring).

I join in the concurrence of Justice Meyer.

      . The statute's definition of accrues is consistent with the common law rule that a claim for contribution by a joint tortfeasor "does not accrue or mature until the person entitled to the contribution has sustained damage by paying more than his fair share of the joint obligation.” Grothe v. Shaffer, 305 Minn. 17, 23-24, 232 N.W.2d 227, 232 (1975).

      . We recognize that there may be circumstances where a contribution and indemnity claim may be brought before it has technically accrued. We have said that the rules of civil procedure encourage the joining of third-party defendants at an early stage and thus permit the joinder of third-party claims for contribution and indemnity at the time the third-party plaintiff is initially sued even though the third-party plaintiff’s claims had not matured. See Calder v. City of Crystal, 318 N.W.2d 838, 844 (Minn.1982), and Minn. R. Civ. P. 14.01. Accordingly, our ruling only applies to situations where the contribution and indemnity claims have not accrued and have not been brought within the statutory period. We express no opinion on the effect of the statute of repose on a contribution or indemnity claim that was brought within the statutory period but did not accrue until after the statutory period.

      . "Every 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, and to obtain justice freely and without purchase, completely and without denial, promptly and without delay, conformable to the laws.” Minn. Const, art. 1, § 8.

      . In Pacific Indemnity we declared that section 541.051, as it then read, was unconstitutional because it protected contractors from suits, but not homeowners or suppliers. 260 N.W.2d at 555. The legislature responded in 1980 by adding property owners and materials suppliers to those protected by the statute's limitations and repose provisions. Act of April 7, 1980, ch. 518, §§ 2-4, 1980 Minn. Laws 595, 596.


source: Caselaw Access Project

author: PAGE, Justice.

license: Public Domain

text:
    STATE of Minnesota, Respondent, v. Darryl COLBERT, Appellant.
    No. A05-855.
    Supreme Court of Minnesota.
    July 6, 2006.

      John M. Stuart, State Public Defender, Michael F. Cromett, Assistant State Public Defender, Minneapolis, MN, for Appellant.
    Mike Hatch, Attorney General, St. Paul, MN, Amy Klobuchar, Hennepin County Attorney, David C. Brown, Assistant County Attorney, Minneapolis, MN, for Respondent.
   OPINION

PAGE, Justice.

On December 26, 2003, Robert Mitchell was shot and killed on the 2800 block of Columbus Avenue in Minneapolis. Appellant Daryl Colbert was arrested and indicted for first-degree premeditated murder in violation of Minn.Stat. § 609.185(a)(1) (2004), and second-degree intentional murder in violation of Minn. Stat. § 609.19, subd. 1(1) (2004), for Mitchell’s death. Colbert was tried before a Hennepin County jury in November 2004. That trial resulted in a hung jury and a mistrial. On retrial in January and February 2005, another Hennepin County jury found Colbert guilty of premeditated first-degree murder and the trial court imposed the mandatory sentence of life imprisonment. Colbert raises three issues in this direct appeal: (1) the evidence was insufficient to support the conviction; (2) the trial court erred when it failed to dismiss the case based on an alleged discovery violation by the state during trial; and (3) the prosecutor committed prejudicial misconduct. We affirm.

The record from Colbert’s trial indicates that on December 26, 2003, Mitchell and Gladys Rogers became engaged. To celebrate, Mitchell and Rogers went to Sunny’s, a bar and restaurant on Lake Street and Chicago Avenue in Minneapolis, arriving there around 3:00 p.m. While at Sunny’s, they were joined by several friends, including Kathleen Washington and Clarence Ealey.

Colbert, wearing a long coat and a brimmed, fedora-style hat, arrived at Sunny’s at 5:33 p.m., according to. Sunny’s surveillance videotapes. Although Colbert was not a member of Mitchell’s party, Washington saw Colbert walk over to Mitchell and have a conversation, during which she heard Colbert and Mitchell mention $50. Washington thought Colbert was wearing a brimmed hat and a long, trench-style coat, which went past his knees and might have been made of cashmere. Ea-ley saw a person wearing a long, full-length dark coat and a dark fedora-style hat talking to Mitchell.

At about 6:00 p.m., Mitchell told Rogers that he was going to buy a television for $50 and that he needed $25 to purchase it. Rogers gave him $30. Washington heard Mitchell ask Rogers for the money and saw Rogers hand Mitchell some money. Mitchell told Rogers he was leaving Sunny’s with “Darryl.” When Mitchell left he took only the keys to Rogers’ car, and said he would be gone for a few minutes.

Washington had been using Mitchell’s cell phone that evening to make calls. She placed a call at approximately 6:10 p.m., and immediately thereafter, she saw Mitchell leaving Sunny’s. As he was leaving, Mitchell told her to keep his phone until he returned. Washington saw Colbert and Mitchell leave Sunny’s at the same time. Mitchell never returned.

Kevin Bollinger and his mother, Lisa Bollinger, were at their home on the 2800 block of Columbus Avenue in Minneapolis that evening. At about 6:15 p.m., while watching television, they heard seven or more gunshots. When they looked out the window, they saw two cars parked trunk-to-trunk on the east side of Columbus Avenue, just to the north of their building. One car was silver or gray and the other was white. The front of the silver car was pointing south and the front of the white car was pointing north. Both cars had their trunks open. Kevin Bollinger saw a man standing next to the white car fire one gunshot towards the south in the direction of the silver car and get into the white car. Lisa Bollinger saw only the back of an African-American male getting into a white car. The man was wearing a dark, brimmed dress hat, with a long, dark or black trench coat that was tied at the waist. The shooter drove away in what looked like a white, four-door Cadillac. Lisa Bollinger thought the car was older, while Kevin Bollinger thought the car might have been newer. The car headed north and turned east on 28th Street. Lisa Bollinger called 911 at 6:17 p.m.

Another eyewitness, Kiersten Chace, parked her car on Columbus Avenue shortly after 6:00 p.m. She heard what she described as two African-American men talking in a normal tone of voice, standing on the east side of Columbus Avenue behind a car with the trunk open. One of the men pulled out a gun and began shooting the other man. The shooter wore a long coat that “came below the buttocks.” Chace heard what she thought were six to eight gunshots. The next thing she saw was a large, white sedan speeding away. The car looked like a Monte Carlo and had a “boxed-shaped” trunk. She called 911 at 6:20 p.m. In all, five 911 calls were made regarding the shooting.

When police officers arrived at the scene of the shooting, they found a gray Buick Regal, which was later determined to be Rogers’, facing southbound on the east side of Columbus Avenue with its trunk open and motor running. Mitchell’s body was lying dead in the street with multiple gunshot wounds. The police found eight discharged shell casings at the scene. There were no fingerprints found on the casings. While at the scene, the police interviewed both of the Bollingers and Chace, and documented their accounts of the shooting.

The next day, at about 9:40 p.m., police responded to a shots-fired call at an apartment on 19th Avenue in Minneapolis. This apartment belonged to Colbert’s nephew, Mark Colbert (M. Colbert). Police officers found a black and silver Lorcin nine millimeter semi-automatic handgun in the apartment. They also determined that both Colbert and a man named Troy Parker had been shot. Forensic experts subsequently determined that at least three of the bullets that killed Mitchell were fired from the nine millimeter gun found in the apartment.

According to Parker, M. Colbert had asked Parker to watch M. Colbert’s apartment while he, M. Colbert, was out of town. On December 27, Parker received a call from Guy Richardson, M. Colbert’s neighbor. Colbert, who was with Richardson at the apartment building, took the phone and told Parker that the neighbors were complaining that the television in M. Colbert’s apartment was too loud.

In response to the call, Parker went to the apartment around 7:00 p.m., parked in the rear of the building, and entered M. Colbert’s empty apartment through the back door. Colbert was outside the front door of the apartment and Parker let him in. Colbert’s speech was slurred and Parker thought he had been drinking.

Parker eventually told Colbert that he, Parker, had to leave. According to Parker, Colbert then stood up and walked around a table, pulled out a gun, and shot Parker in the back of the leg. Parker grabbed the gun and the two struggled. During the struggle, Colbert was shot. At some point, Parker was able to get the gun away from Colbert, and when he did so he fired a shot towards Colbert. Colbert fled the apartment. Parker testified that he saw Colbert get into a white, older model vehicle, either a Dynasty or a New Yorker.

Parker’s account was corroborated by Richardson, who claimed that he was in his apartment alone around 8:30 or 9:00 p.m. on December 27, when Colbert came to his apartment. Colbert had been “banging” on M. Colbert’s door for a while and came to Richardson’s apartment to ask if Richardson had seen Parker. Richardson said Colbert was “kind of slurring his words,” and “[i]t seemed like he had been drinking.” Colbert used Richardson’s phone to call Parker. Richardson overheard part of Colbert’s conversation, and thought that Colbert was “trying to get somebody to come over there.” Colbert “kept saying the TV was too loud and that the neighbors were complaining.”

After the phone call, Colbert told Richardson that “he had something for [Parker].” Then Colbert “walked over by the door and ⅜ * * put his hands behind his back and it sounded like a gun cocking and he said, ‘Mind your business about what you hear over here or I’m going to come back.’ ” A few minutes later, Richardson heard Parker’s voice. Then he heard three gun shots and called 911.

As part of their investigation of the December 27 shooting, the police took Colbert’s white 1988 Chrysler New Yorker to the police forensic garage. An officer investigating the Mitchell murder saw the car there, thought that it looked similar to the car described as being involved in Mitchell’s murder, and took a picture to show witnesses.

As part of the investigation of the Mitchell murder, the police obtained surveillance videotapes from Sunny’s for the night of December 26. The videotapes showed Mitchell leaving Sunny’s at 6:13 p.m. on December 26 with an individual in a brimmed, fedora-style hat and a long overcoat. The videotapes also showed the two walking side by side down the sidewalk outside of Sunny’s. A still-frame of the videotape showing Colbert entering Sunny’s was shown to Kevin Bollinger, who indicated that the clothing worn by Colbert was similar to the clothing worn by the man he saw shoot Mitchell. The police executed a search warrant at Colbert’s apartment in St. Paul, where they seized a dark brown, brimmed hat and a tan coat similar in style to that described by eyewitnesses.

The surveillance tapes also showed a white vehicle, similar to the description of the shooter’s vehicle and similar to Colbert’s New Yorker, drive by Sunny’s at 6:21 p.m. Police officers determined that it would take 50-53 seconds to drive from Sunny’s to the murder scene.

At trial, in addition to the facts described above, the state sought to demonstrate links between the coat and hat Colbert wore the night of the murder, the coat and hat worn by the shooter, and the hat seized from Colbert’s apartment. To do so, the state introduced the testimony of a forensic video analyst who had analyzed Sunny’s surveillance tapes. The analyst concluded that there were eight similarities and no dissimilarities between the hat in Sunny’s surveillance videotapes and the hat seized from Colbert’s apartment. He also concluded that there were a number of style similarities between the coat seen in Sunny’s videotapes and the coat seized from Colbert’s apartment, however, “there [was] a great difference in tone quality between these two topcoats.” Therefore, the analyst concluded that the two were not the same coat. At Colbert’s first trial, the state argued that it was not known whether the two coats were the same, and our review of the record from the first trial indicates that the forensic analyst did not testify one way or the other as to whether the two coats were the same. Finally, the analyst testified that there were no dissimilarities between the car seen on the tapes and Colbert’s New Yorker. Kevin and Lisa Bollinger testified that Colbert’s car appeared to be similar to the car that they saw on December 26, and that the hat and coat Colbert wore in the surveillance video were similar to the hat and coat worn by the shooter. Chace also testified that Colbert’s car was similar in age, color, and shape of the trunk to the car she saw the shooter drive away in.

Colbert testified in his own defense and denied killing Mitchell. Colbert admitted that he went to Sunny’s on December 26 and that he arrived there at 5:33 p.m., wearing a long coat and brimmed hat. He claimed that he parked in the Kentucky Fried Chicken parking lot approximately one-half block north of Sunny’s. Colbert testified that while he was at Sunny’s, he talked to Mitchell for approximately 30 seconds. Colbert further testified that he left Sunny’s alone, that Mitchell exited behind him, and that they went their separate ways. Colbert acknowledged that his 1988 Chrysler New Yorker was the car shown on the surveillance videotape driving past Sunny’s at 6:21 p.m.

According to Colbert, after he left Sunny’s, he went home, then to Chi-Chi’s in Richfield, where he ran into a female friend. Colbert and his female friend ultimately went to the Excel Inn in St. Paul, where they had sexual relations. Colbert’s friend confirmed that she was with Colbert at Chi-Chi’s and accompanied him to the hotel. Colbert’s ex-wife testified that she called Colbert on his cell phone at 8:00 p.m. on December 26 and she thought he was at home. Later that evening, between 10:30 and 11:30, she saw Colbert with a woman at Chi-Chi’s. The prosecution used this information during closing argument to imply that Colbert’s female friend was biased and that Colbert’s fiancé, who also testified in his defense, did not have knowledge of Colbert’s whereabouts.

Colbert also testified regarding the December 27 shooting. According to Colbert, on December 27, Parker wanted Colbert to come over to M. Colbert’s apartment and “cook up some crack for him.” Colbert went to M. Colbert’s apartment and knocked on the apartment door, but there was no answer, so he went to Richardson’s door and asked if he could use the phone to call Parker. When Colbert spoke with Parker, Parker said he was on his way to the apartment. Colbert waited outside the apartment for about 20 minutes, and then Parker motioned for him to come into the apartment.

Colbert testified that Parker pulled out a digital scale and put it on the table. Colbert could see Parker had a gun. Parker accused Colbert of stealing his drugs and pointed the gun at Colbert. The gun went off, hitting Colbert’s right leg. Then Parker aimed and shot Colbert’s left leg. Colbert grabbed for the gun and he and Parker wrestled for control of the weapon. The gun went off and presumably shot Parker. Colbert stumbled out of the apartment to his car and immediately went to the hospital.

On cross-examination, Colbert was asked about a statement he made to the police on December 31, 2003, during the investigation of the December 27 shooting, that he had gone to visit M. Colbert, that M. Colbert’s apartment door was unlocked, and that a masked man armed with an automatic weapon pulled him into the apartment. He told police there was a “takeover demand,” at which point he began to wrestle with the masked man. Colbert did not tell police about any alleged “crack deal” with Parker. On further cross-examination, Colbert claimed that the December 31 statement was a lie.

Howard Wilder testified that he was with Colbert on December 27 when the second shooting occurred. According to Wilder, he and Colbert drove up to an apartment building and Colbert got out of the car, saying he would be back shortly. After about 20 minutes, Colbert stumbled out of the apartment building and said, “He shot me.” Wilder drove Colbert to the hospital in Colbert’s car.

I.

Colbert argues that the evidence adduced at trial was insufficient to convict him of first-degree murder. As support for this argument, Colbert cites inconsistent witness descriptions of the car driven by the shooter and the overcoat worn by the shooter, the implausibility of Parker’s story regarding the December 27 shooting, and the narrow time-frame between the time Colbert was taped leaving Sunny’s and when he was taped driving by Sunny’s. He further argues that even “if the evidence is found to be technically sufficient * * * careful consideration of the evidence leaves too many unanswered questions.”

In State v. Mems, we said:

Assessing the credibility of a witness and the weight to be given a witness’s testimony is exclusively the province of the jury. The jury is free to accept part and reject part of a witness’s testimony. Inconsistencies or conflicts between one witness and another do not necessarily constitute false testimony or serve as a basis for reversal. “It will be noted that in reviewing the sufficiency of the evidence we do not try the facts anew. Our responsibility extends no further than to make a painstaking review of the record to determine whether the evidence, direct and circumstantial, viewed most favorably to support a finding of guilt is sufficient to permit the jury to reach that conclusion.”

708 N.W.2d 526, 531-32 (Minn.2006) (internal citations omitted).

This case involves circumstantial evidence. A conviction based on circumstantial evidence is entitled to the same weight as direct evidence. State v. Olhausen, 681 N.W.2d 21, 26 (Minn.2004). However, a conviction based on circumstantial evidence will stand only if the circumstantial evidence forms “a complete chain which, in light of the evidence as a whole, leads so directly to the guilt of the accused as to exclude, beyond a reasonable doubt, any reasonable inference other than that of guilt.” State v. Leake, 699 N.W.2d 312, 319-20 (Minn.2005) (quoting State v. Wahlberg, 296 N.W.2d 408, 411 (Minn.1980)).

Viewing the evidence as a whole in the light most favorable to the jury’s verdict, we conclude that the evidence leads so directly to Colbert’s guilt as to exclude, beyond a reasonable doubt, any reasonable inference other than guilt. Colbert was seen arriving at Sunny’s on December 26, 2003, at 5:33 p.m. wearing a brimmed, fedora-style hat and a long topcoat. A Sunny’s surveillance videotape from that evening shows Colbert talking to Mitchell at 5:50 p.m. Washington testified that she heard a part of the conversation between Colbert and Mitchell in which $50 was mentioned. Washington also saw Colbert leaving Sunny’s with Mitchell, and a videotape from Sunny’s surveillance system shows Mitchell and Colbert exiting Sunny’s side-by-side at 6:13 p.m. Rogers testified that Mitchell was going to buy a television for $50 and was leaving with someone named Darryl.

Shortly after Colbert and Mitchell left Sunny’s, three individuals witnessed two cars parked trunk-to-trunk approximately one and one-half blocks away from Sunny’s on the 2800 block of Columbus Avenue. One of the cars was described as an older model white car with a “boxed-shaped” or “squared-off’ back end. Two men were standing near the cars. The witnesses saw one of the men, who was wearing a dark, brimmed hat and a long, dark topcoat, shoot the other man. The shooter drove away in the older model white car. Colbert drives a white, 1988 Chrysler New Yorker, which witnesses testified was similar to the shooter’s car. Two of the witnesses called 911 immediately after the shooting. The first call was logged at 6:17 p.m. At 6:21 p.m., a white Chrysler New Yorker was videotaped by Sunny’s external video surveillance system driving past Sunny’s on Chicago Avenue. Colbert admitted that the white Chrysler New Yorker seen driving past Sunny’s belonged to him and that he was driving it.

The next day, a gun, which forensic experts determined was involved in Mitchell’s shooting, was used in the shooting involving Colbert and Parker. Parker testified that Colbert brought the gun to M. Colbert’s apartment, shot Parker, and during an ensuing struggle for the gun, Colbert himself was shot. While Colbert’s version of the events leading to him being shot by Parker had Parker bringing the gun to the apartment and shooting Colbert, the jury was free to, and evidently did, reject Colbert’s version of these events.

II.

Colbert next claims that he was denied a fair trial when the state committed a discovery violation by not timely disclosing a change in the forensic video analyst’s opinion about the coat seized in the search of Colbert’s apartment. Colbert asserts that the state’s failure to timely disclose the change in the video analyst’s opinion entitles him to dismissal or a new trial. We disagree.

Whether a discovery violation occurred presents a question of law, which we review de novo. State v. Palubicki, 700 N.W.2d 476, 489 (Minn.2005). Under Minn. R.Crim. P. 9.01, subd. 1(2), a prose-eutor is required to disclose “the substance of any oral statements which relate to the case.” The prosecutor has a continuing obligation to “promptly notify the other party of the existence of the additional * * * information.” Minn. R.Crim. P. 9.03, subd. 2(a). The prosecution must also disclose all exculpatory evidence to the defense. Minn. R.Crim. P. 9.01, subd. 1(6); Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The rules do not require that disclosure take any particular form.

“[OJnce a discovery violation has occurred, a district court ‘is particularly suited to determine the appropriate remedy * * ” State v. Bailey, 677 N.W.2d 380, 397 (Minn.2004) (quoting State v. Freeman, 531 N.W.2d 190, 197-98 (Minn.1995)). We review a trial court’s choice of remedy for an abuse of discretion. See State v. Gates, 615 N.W.2d 331, 340 (Minn.2000). Generally we will not grant a new trial unless the defendant shows that the violation was prejudicial. Palubicki, 700 N.W.2d at 489. In other words, “a reviewing court ordinarily should not order a new trial if no reasonable probability exists that the outcome of the trial would have been different if the evidence had been available.” Freeman, 531 N.W.2d at 198.

At each of Colbert’s trials, there was testimony about the relationship between the coat Colbert was seen wearing the night of Mitchell’s murder and the coat seized from Colbert’s apartment. A printed report of the analyst’s findings, dated October 21, 2004, was provided to the defense. That report explained that there were some similarities between the coat Colbert wore on December 26 and the coat subsequently seized from his apartment, but that the coat seized from Colbert’s apartment appeared to be a lighter color than the coat Colbert wore on December 26. As noted previously, at Colbert’s first trial, the state argued that it was not known whether the two coats were the same, and the video analyst did not testify definitely one way or the other.

According to the state, on January 25, 2005, while one of its prosecutors was preparing the analyst for testimony the next day in Colbert’s second trial, the prosecutor asked the analyst “whether he could exclude the coat seized from [Colbert’s apartment] as the coat observed on the December [26] surveillance video.” The analyst definitively stated that the two coats were not the same. At 7:01 p.m. that evening, the prosecutor sent an email to Colbert’s attorney informing him that the analyst had expressly stated that the two coats were not the same. The analyst testified to that effect on January 27, 2005. The state claims that before the analyst testified on January 27, the prosecutor had a conversation with Colbert’s attorney in which Colbert’s attorney “said something to [the prosecutor] about he’s going to say it’s not the coat, or something like that, which led [the prosecutor] to believe that [Colbert’s attorney] had that e-mail and had the information” that the prosecution had emailed to him on January 25.

On January 28, Colbert’s defense counsel moved for dismissal “in the interests of justice” because he had not seen the email regarding the coat until after the analyst testified on January 27 and because the analyst’s “new opinion” constituted a change in the prosecution’s theory of the case, amounting to a discovery violation. Defense counsel also requested that he be given certain Polaroid pictures of the coat seized from Colbert’s apartment, which Sergeant Erika Christensen, who had already testified, showed to witnesses during the investigation of Mitchell’s death. Defense counsel argued that, had he known about the analyst’s “new opinion,” he “would have been able to cross-examine Sergeant Christensen about that change, that shift, in [the state’s] posture of what they believed the facts in this case were.” The trial court ordered and the prosecutor provided the Polaroid pictures to Colbert. The trial court also permitted Colbert to re-call Officer Christensen and cross-examine her regarding witness identification of the coat seized from Colbert’s apartment. The trial court denied the motion to dismiss.

We have not had occasion in the past to decide whether a prosecutor’s disclosure of a new statement of a witness as required by Rule 9.01, subd. 1(2) and subd. 2(a), is sufficient when the disclosure, as here, was done by email message sent at night during the middle of trial. And we decline to do so here because, even if we were to conclude that the email message here was not sufficient to satisfy Rule 9.01, Colbert would not be entitled to the relief he seeks. While arguing the motion for dismissal, counsel for Colbert specifically stated that, had he known the analyst’s “new opinion,” he would have cross-examined Sergeant Christensen regarding the Polaroid pictures shown to witnesses. The trial court determined that the appropriate remedy for the alleged violation was to require the state to produce the Polaroid pictures and allow Colbert to cross-examine Officer Christensen. By doing so, the trial court put Colbert in the same position he would have been in if he had known of the video analyst’s “new opinion” earlier. Therefore, the trial court did not abuse its discretion when it fashioned the remedy for the alleged discovery violation.

Moreover, Colbert has failed to show that he was prejudiced by the alleged violation. Although Colbert claims he was prejudiced because the “new opinion” constituted a change in the state’s theory of the case, the record belies that assertion. In essence, Colbert’s argument, as set forth in his brief and as articulated at oral argument before the court, is that the state’s theory at the first trial was that the two coats were the same. In fact, our reading of the record indicates that, in addition to the analyst’s October 2004 report indicating that the coats were dissimilar in color, the state argued at Colbert’s first trial that it was not known whether the two coats were the same. Specifically, the state argued:

Now, the defendant would like you to believe that the coat [found at his apartment], is the same coat that you see in this surveillance video. * * * We don’t know if that’s the same coat. * * * It’s the same style, and that’s significant. It’s a long dress coat. This is the kind of coat that the defendant likes to wear.

Interestingly, it appears that the excerpts of the state’s closing argument from Colbert’s first trial that Colbert uses to support his argument actually reference the state’s argument that the coat Colbert wore on December 26 was the same coat witnesses saw the shooter wearing when he shot Mitchell.

The analyst’s testimony at the second trial that the two coats were definitively not the same coat was simply an extension of the theory the state had maintained throughout both trials — that although the coat seized from Colbert’s apartment was likely not the coat he wore on December 26, it was similar in style and represented a type of coat Colbert “likes to wear.” Thus, we conclude that the state did not change its theory of the ease between the two trials as it related to the coat worn by Colbert on the night Mitchell was murdered and the coat seized from Colbert’s apartment, and therefore Colbert was not prejudiced by any alleged discovery violation.

III.

Finally, Colbert claims that the prosecuting attorney engaged in misconduct by (1) improper reference to Colbert’s exercise of the Sixth Amendment right to be present at trial and (2) improper reference to Colbert’s sexual infidelity. During Colbert’s cross-examination, the prosecutor pointed out that Colbert had “sat through the entire trial,” had the opportunity to hear the testimony of a number of witnesses, and had been provided with police reports, surveillance videos, photos, and transcripts from other proceedings. Colbert made no objection to any of the cross-examination he now claims implicated his Sixth Amendment right to be present at trial. Therefore, our review is for plain error. See State v. MacLennan, 702 N.W.2d 219, 235 (Minn.2005). When assessing whether plain error occurred, we ask “whether (1) there was error, (2) the error was plain, and (3) the error affected the defendant’s substantial rights.” Id. “Error is prejudicial if there is a reasonable likelihood that the absence of the misconduct in question ‘would have had a significant effect on the verdict of the jury.’ ” Id. at 236 (quoting State v. Griller, 583 N.W.2d 736, 741 (Minn.1998)). If all three requirements are met, we assess whether we “should address the error to ensure fairness and the integrity of the judicial proceedings.” Griller, 583 N.W.2d at 740. We are satisfied, on the record presented and given the limited nature of the cross-examination that might have violated Colbert’s rights under the Sixth Amendment, that any possible misconduct did not affect Colbert’s substantial rights.

We need not analyze Colbert’s remaining claims of prosecutorial misconduct in detail. It is enough to say that we have carefully reviewed the record as it relates to those claims and conclude that if any of the conduct underlying the claims constituted prosecutorial misconduct, none of the conduct as alleged, whether viewed as discrete instances of misconduct or collectively, was so serious or prejudicial as to deny Colbert a fair trial.

Affirmed.

      . The timing discrepancy between Parker and Richardson’s testimony was not explained.


author: COLLINS, Judge.

text:
    STATE of Minnesota, Appellant, v. Ronald Joseph LEMMER, Respondent.
    No. A05-2481.
    Court of Appeals of Minnesota.
    June 20, 2006.

      Mike Hatch, Attorney General, St. Paul, MN; and Patrick J. Ciliberto, Scott County Attorney, Michael J. Groh, Assistant County Attorney, Shakopee, MN, for appellant.
    Jeffrey S. Sheridan, Strandemo, Sheridan & Dulas, P.A., Eagan, MN, for respondent.
    Considered and decided by LANSING, Presiding Judge; STONEBURNER, Judge; and COLLINS, Judge.
   OPINION

COLLINS, Judge.

Appellant State of Minnesota challenges the dismissal of a DWI complaint, contending that (1) the district court erred by adopting a prior district-court order declaring Minn.Stat. § 169A.53, subd. 3(g) (2004), unconstitutional, thereby estopping the state from litigating dispositive stop- and-seizure issues on which respondent Ronald Joseph Lemmer prevailed at his implied-consent hearing; and (2) declaring section 169A.53, subd. 3(g), unconstitutional is violative of the separation-of-powers doctrine. Lemmer moved this court to strike much of the state’s brief as a collateral attack on an injunction. The state’s arguments are not improper; thus, we deny Lemmer’s motion. Because collateral estoppel is substantive law, not a rule of procedure, and because the principle of comity supports respect for the statute, we reverse and remand.

FACTS

On June 4, 2005, while pursuing a DWI suspect who had left the scene of a traffic accident near Prior Lake, sheriffs deputies learned that he had boarded a boat being operated, as later discovered, by Lemmer. After dropping the DWI suspect off on shore, Lemmer went on his way in the boat. The DWI suspect was arrested. In furtherance of their investigation, deputies launched their own boat to pursue, stop, identify, and interview Lem-mer. While speaking with Lemmer, the deputies noted typical indicia of intoxication, arrested him, and took him to the county jail. There, Lemmer submitted to an Intoxilyzer 500 test that indicated an alcohol concentration of .12. A review of Lemmer’s driving record revealed a prior impaired-driving incident in 2000. The Commissioner of Public Safety revoked Lemmer’s driver’s license, and the state subsequently charged him with two alternative counts of third-degree DWI.

Contending that the stop of his boat was illegal, Lemmer challenged the revocation of his driver’s license. An implied-eonsent hearing was scheduled for August 1, 2005. The state was given notice but, relying on Minn.Stat. § 169A.53, subd. 3(g) (2004), did not attend. Following the implied-eonsent hearing, the district court rescinded the commissioner’s order revoking Lemmer’s driver’s license, stating that the deputies “had no ‘particularized and objective basis’ for pursuing and stopping [Lem-mer] in his boat.”

Lemmer next moved for dismissal of the criminal charges. He initially sought relief on the ground that Minn.Stat. § 169A.53, subd. 3(g) (2004), is unconstitutional. During an omnibus hearing on November 17, the district court was made aware of a November 8, 2005 Goodhue County district court order declaring section 169A.53, subd. 3(g), unconstitutional. Relying on that order, Lemmer contended that the state was estopped from re-litigating the issue of the legality of the stop because the state had notice of his implied-eonsent hearing and did not appear. And because the state could not re-litigate that issue, Lemmer argued that the district court must suppress all evidence obtained following the stop, which, in this case, required dismissal of the complaint.

On December 2, 2005, the district court ordered dismissal of the charges “[p]ursu-ant to the reasoning set forth in [the Goo-dhue County district court order],” and, without independent analysis, the district court simply “adopt[ed] and incorporate[d]” the Goodhue County district court’s reasoning into its order. The state appeals.

ISSUE

Did the district court clearly err by finding and declaring Minn.Stat. § 169A.53, subd. 3(g) (2004), unconstitutional?

ANALYSIS

If the state appeals from a pretrial suppression order, it “must ‘clearly’ and unequivocally show both that the trial court’s order will have a ‘critical impact’ on the state’s ability to prosecute the defendant successfully and that the order constituted error.” State v. Scott, 584 N.W.2d 412, 416 (Minn.1998) (citing State v. Zanter, 535 N.W.2d 624, 630 (Minn.1995)). “[T]he critical impact of the suppression must be first determined before deciding whether the suppression order was made in error.” Id.

Here, the district court, adopting the Goodhue County district court’s finding and declaration that Minn.Stat. § 169A.53, subd. 3(g) (2004), is unconstitutional, dismissed the charges. At his implied-consent hearing, Lemmer successfully litigated the legality of the stop that resulted in detection of his intoxication and his subsequent arrest. The Goodhue County district court had effectively ruled, by finding and declaring the statute unconstitutional, that when the state does not contest an issue at an implied-eonsent hearing of which it had notice, it cannot re-litigate the issue during the criminal prosecution. The Goodhue County district court also purportedly enjoined the state and its various subdivisions from attempting to enforce Minn.Stat. § 169A.53, subd. 3(g). Thus, the district court here suppressed the evidence that derived from the stop and dismissed the complaint. The critical impact of the suppression in this case is obvious.

Lemmer moved to strike the major portion of the state’s brief, alleging that the state’s argument constituted an improper collateral attack on an injunction. But the district court in this case adopted the Goodhue County district court’s reasoning and incorporated its memorandum into the order dismissing the charges against Lemmer. Therefore, it is not the Goodhue County injunction that is the subject of attack; rather, the state challenges the district court’s order that is here supported solely by adoption and incorporation of the purported injunction. Because the injunction is included in the record by reference, it is properly before us, and we will consider the state’s arguments as presented.

We presume that Minnesota statutes are constitutional, and “our powers to declare a [statute] unconstitutional should be exercised with extreme caution and only when absolutely necessary.” Associated Builders & Contractors v. Ventura, 610 N.W.2d 293, 308 (Minn.2000) (quotation omitted). “Evaluating a statute’s constitutionality is a question of law.” Hamilton v. Comm’r of Pub. Safety, 600 N.W.2d 720, 722 (Minn.1999). Accordingly, our review is de novo and we are “not bound by the [district] court’s decision.” Id. Further, “[t]he party challenging a statute has the burden of demonstrating beyond a reasonable doubt a violation of some provision of the Minnesota Constitution.” In re Haggerty, 448 N.W.2d 363, 364 (Minn.1989); see also Miller Brewing Co. v. State, 284 N.W.2d 353, 356 (Minn.1979) (holding that person challenging constitutionality of a statute must “demonstrate[ ] beyond a reasonable doubt that the statute violates some constitutional provision”).

The district court ruled that Minn.Stat. § 169A.53, subd. 3(g), was unconstitutional because it violated the separation-of-powers doctrine. Supporting this ruling, the district court “adopt[ed] and incorpo-rat[ed]” a Goodhue County district court’s memorandum outlining its rationale for a similar ruling. The Goodhue County district court stated that the legislature could not enact a statute to counter a judicial decision on a procedural matter.

This court, in State v. Victorsen, held that an issue litigated during an implied-consent hearing could not be re-litigated during a criminal prosecution for driving while intoxicated, so long as the prosecuting attorney had notice of the implied-consent hearing and an opportunity to be heard. 627 N.W.2d 655, 660-64 (Minn.App.2001). During the next regular legislative session following Victorsen, the legislature enacted Minn.Stat. § 169A.53, subd. 3(g), which states: “The civil hearing under this section shall not give rise to an estoppel on any issues arising from the same set of circumstances in any criminal prosecution.” That section became effective August 1, 2002. See 2002 Laws of Minn. ch. 314, § 1. It is apparent that the legislature acted purposefully to abrogate the holding in Victorsen.

This court had occasion to comment on the statute’s enactment only once previously. State v. Hassemer, No. C5-02-1623, 2003 WL 1488737, at *3 n. 1 (Minn.App. Mar. 25, 2003). The offense in Has-semer occurred after Victorsen was decided but before the effective date of Minn. Stat. § 169A.53, subd. 3(g). Id. at *1. This court observed that “Victorsen may apply in only a small number of cases because the legislature amended the statute in 2002,” thus implicitly accepting that Vic-torsen had been abrogated by the statute. Id. at *3 n. 1.

On the premise that the doctrine of collateral estoppel is a rule of procedure and not substantive law, the district court, adopting the reasoning of the Goodhue County district court, determined that the legislature’s attempt to overrule Victorsen was an unconstitutional violation of the separation-of-powers doctrine.

1. Substantive versus procedural

The distinction between whether a law is substantive or procedural is important because

[t]he legislature has the power to declare what acts are criminal and to establish the punishment for those acts as part of the substantive law. In contrast, the court regulates the method by which the guilt or innocence of one who is accused of violating a criminal statute is determined.

State v. Lindsey, 632 N.W.2d 652, 658 (Minn.2001) (citations omitted). The supreme court has noted that “[a] statute is procedural when it neither creates a new cause of action nor deprives defendant of any defense on the merits.” State v. Johnson, 514 N.W.2d 551, 555 (Minn.1994) (quotation omitted). “[U]nder the separation of powers doctrine the legislature has no constitutional authority in their enabling acts or otherwise to reserve a right to modify or enact statutes that will govern over court rules [of procedure] already in place.” Id. at 553-54 (alteration in original) (quotation omitted).

Federal courts have long grappled with the issue of whether a concept is procedural or substantive, notably in the area of diversity jurisdiction. See the progeny of Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), including Guar. Trust Co. of New York v. York, 326 U.S. 99, 65 S.Ct. 1464, 89 L.Ed. 2079 (1945) and Hanna v. Plumer, 380 U.S. 460, 85 S.Ct. 1136, 14 L.Ed.2d 8 (1965). The United States Supreme Court articulated the outcome-determinative test for deciding whether a law is procedural or substantive: “[D]oes it significantly affect the result of a litigation for a federal court to disregard a law of a State that would be controlling in an action upon the same claim by the same parties in a State court?” Guar. Trust Co. of New York, 326 U.S. at 109, 65 S.Ct. at 1470. Simply put, if the law is outcome determinative — if it will influence the outcome of the case-then it is substantive and not merely procedural. Hanna, 380 U.S. at 465-69, 85 S.Ct. at 1141-42.

Subsequently, the federal courts, including the Eighth Circuit, have arrived at near unanimity over whether the doctrine of collateral estoppel is procedural or substantive, concluding that it is substantive. See Austin v. Super Valu Stores, Inc., 31 F.3d 615, 617 (8th Cir.1994) (stating that “cases from [this circuit] have consistently concluded that collateral estoppel in a diversity action is a question of substantive law”) (quotation omitted); Held v. Mitsubishi Aircraft Int’l, Inc., 672 F.Supp. 369, 386 (D.Minn.1987) (stating that “[i]n federal diversity actions collateral estoppel is generally an issue of the forum state’s substantive law”). Based on this federal caselaw, we likewise conclude that the doctrine of collateral estoppel is substantive law, not a rule of procedure.

Furthermore, because the line between substantive and procedural can, at times, be blurry, “when a specific measure can reasonably be viewed as either substantive or procedural, it should be resolved in favor of its substantive character.” Maynard E. Pirsig & Randall M. Tietjen, Court Procedure and the Separation of Powers in Minnesota, 15 Wm. Mitchell L.Rev. 141, 187 (1989). “Due respect for the coequal branches of government requires the court to exercise great restraint before striking down a statute as unconstitutional, particularly when it involves a determination of what is a legislative and what is a judicial function.” State v. Willis, 332 N.W.2d 180, 184 (Minn.1983). Thus, a statute is constitutional when it, “in no way[,] interferes with the judiciary’s function of ascertaining facts and applying the law to the facts established.” Id.

The statute here is substantive because the decision whether to apply collateral estoppel is not merely “regulat[ing] the method by which the guilt or innocence” of a defendant is decided. Lindsey, 632 N.W.2d at 658. Under the federal caselaw analysis, application of collateral estoppel in this case is clearly outcome determinative because it resulted in dismissal of the charges. Thus, we are satisfied that the legislature is entitled to enact a statute regulating the application of collateral estoppel without violating the separation-of-powers doctrine, and we conclude that the district court clearly erred by finding and declaring Minn.Stat. § 169A.53, subd. 3(g), unconstitutional.

Moreover, even when collateral estoppel is available, the decision whether to apply the doctrine is discretionary with the district court. Pope County Bd. of Comm’rs v. Pryzmus, 682 N.W.2d 666, 669 (Minn.App.2004), review denied (Minn. Sept. 29, 2004) (quotation omitted); see AFSCME Council 96 v. Arrowhead Reg’l Corrs. Bd., 356 N.W.2d 295, 299 (Minn. 1984) (stating that collateral estoppel is not rigidly applied and “is qualified or rejected when [its] application would contravene an overriding public policy”) (quoting Tipler v. E.I. duPont deNemours & Co., 443 F.2d 125, 128 (6th Cir.1971)); see also Falgren v. State Bd. of Teaching, 545 N.W.2d 901, 905 (Minn.1996) (noting that “collateral es-toppel is not rigidly applied” and stating that “[a]s a flexible doctrine, the focus is on whether its application would work an injustice on the party against whom estop-pel is urged”) (quoting Johnson v. Consol. Freightways, Inc., 420 N.W.2d 608, 613 (Minn.1988)).

Neither the district court, nor the Goo-dhue County district court in the prior case, gave any indication of awareness that, even if the prerequisites for collateral estoppel were satisfied, it had discretion to not apply the doctrine. Particularly under the circumstances of this case — when the implied-consent hearing pre-dated the Goodhue County district court order; no constitutional challenge to section 169A.53, subd. 3(g), had otherwise been decided; the question of collateral estoppel as substantive or procedural had not been settled in Minnesota law; and, the state relied on section 169A.53, subd. 3(g), in declining to appear and participate at the implied-consent hearing — we think that the application of the doctrine of collateral estoppel worked an injustice on the state. The district court erroneously failed to consider these circumstances before rigidly applying collateral estoppel.

2. Comity

Alternatively, we consider whether Minn.Stat. § 169A.53, subd. 3(g), should stand as a matter of comity. “Comity is not a rule of law but a principle [that] has been described as a ‘blend of courtesy and expediency.’ ” Minnesota Mut. Life Ins. v. Anderson, 410 N.W.2d 80, 82 (Minn.App.1987) (quoting Medtronic, Inc. v. Catalyst Research Corp., 518 F.Supp. 946, 955 (D.Minn.1981), affd 664 F.2d 660 (8th Cir.1981)). When the court allows a statute to stand under comity, it “respects and acknowledges the actions of the legislative branch[,] ... illustrating] the inevitable fact that the legislature will continue to enact statutes which to some extent deal with court procedure.” Pirsig & Tietjen, supra at 185.

The supreme court has allowed certain statutes to stand under this principle, despite the fact that the statute may conflict with a particular court rule. Id. at 182 (stating that the supreme court has permitted statutes regulating attorneys to stand, so long as they did not contravene the court’s control over the legal profession). By allowing a statute to stand under the principle of comity, the court is not saying that its enactment was born of proper legislative authority, but merely that the court, out of respect, will permit it. See State v. Breaux, 620 N.W.2d 326, 332 (Minn.App.2001) (stating that a statute was constitutional and properly used despite the fact that it clearly conflicted with a then-existing rule of procedure); see also State v. Wolf, 605 N.W.2d 381, 387 (Minn.2000) (same).

We believe that the district court should have accorded comity and allowed section 169A.53, subd. 3(g) to stand, despite its contradiction to Victorsen. Because it was unsettled in Minnesota law whether the doctrine of collateral estoppel is substantive or procedural, and inasmuch as the holding in Victorsen was not a rule of procedure promulgated by the supreme court, the district court should have deferred to the act of the legislature. The district court should have also taken guidance from this court’s note reflecting the view that the legislature had effectively abrogated Victorsen. See Hassemer, No. C5-02-1623, 2003 WL 1488737, at *3 n. 1. Therefore, under a reasonable application of the principle of comity, we conclude that the district court clearly erred by finding and declaring Minn.Stat. § 169A.53, subd. 3(g), unconstitutional.

DECISION

The district court clearly erred by finding and declaring Minn.Stat. § 169A.53, subd. 3(g) (2004), unconstitutional because (1) the doctrine of collateral estoppel is substantive law, and (2) as a matter of comity, the statute should have been allowed to stand.

Reversed and remanded.

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