source: Caselaw Access Project

author: HANSON, Judge.

license: Public Domain

text:
    Gerald R. FRASER, Respondent, v. Jayne C. FRASER, Appellant, James L. Fraser, Respondent, and In re the Marriage of James L. Fraser, petitioner, Respondent, v. Jayne C. Fraser, Appellant, v. Gerald R. Fraser, individually and as Trustee of the Gerald R. Fraser Revocable Intervivos Trust, Respondent.
    Nos. C6-01-812, C8-01-813.
    Court of Appeals of Minnesota.
    March 19, 2002.

      Kenneth Robert Hertz, Columbia Heights, and Steve Nichols, Minneapolis, (for appellant).

      Paul W. Chamberlain, Chamberlain Law Firm, Wayzata, and Richard S. Eskola, Fridley, (for respondent).
    Considered and decided by SCHUMACHER, Presiding Judge, HANSON, Judge, and PORITSKY, Judge.

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

   OPINION

HANSON, Judge.

Appellant-wife and respondent-husband bought a house on contract-for-deed from husband’s father. After husband brought an action to dissolve the marriage, father gave notice of the cancellation of the contract for deed. Initially, the district court joined father as a third-party respondent in the dissolution action and enjoined him from canceling the contract for deed. On reconsideration, the district court vacated the injunction and held that it lacked personal jurisdiction over father and subject matter jurisdiction over his property rights; that its order enjoining cancellation was void ab initio; and that the period to cure the cancellation of the contract for deed had expired.

Father then brought an eviction action against wife and her tenants and the same district court judge ruled in father’s favor, holding that wife’s service defenses were precluded because they had been previously rejected in the dissolution action and that wife’s equitable defenses were outside the scope of an eviction action. Wife appealed from the district court’s rulings in both cases and the two appeals were consolidated.

Because the dissolution action is not “an action under or in relation to” a contract for deed, for purposes of enjoining cancellation under Minn.Stat. § 559.211 (2000), we affirm the district court’s determination that it lacked jurisdiction in the dissolution action to enjoin father. But because the district court lacked jurisdiction in the dissolution action to decide questions concerning the cancellation of the contract for deed, wife was not foreclosed from litigating her service defenses in the eviction proceeding. Further, because wife’s equitable defenses were not precluded by the expiration of the period to cure the cancellation of the contract for deed, the district court must determine whether the eviction action provides the only opportunity to litigate those defenses, in which case wife may assert those defenses in the eviction action. Thus, we remand the eviction action for further proceedings.

FACTS

Husband and wife acquired a home by buying it from the sellers, quitclaiming it to husband’s father, and entering a contract for deed with father. During the marriage, father periodically accepted late contract-for-deed payments from husband and wife.

Husband petitioned to dissolve the marriage. Under the temporary order, the district court awarded wife the use of the home and ordered husband to make the contract-for-deed payments. Husband tendered father a check for the July 2000 payment but father refused to accept it because there were insufficient funds in husband’s account. Father later refused to accept the August and September payments from husband.

Father then attempted to serve husband and wife with a Notice of Cancellation of the contract for deed. Service on wife was made on wife’s adult daughter, who allegedly lived in a basement apartment in the home. Wife moved in the dissolution action to have husband held in contempt for not making the contract-for-deed payments, to join father as a third-party respondent and to suspend father’s ability to cancel the contract for deed. The district court initially joined father as a respondent to the dissolution action and enjoined him from canceling the contract for deed. The district court also found husband in contempt, but suspended his sentence to the extent that he made timely payments to wife’s attorney of the amounts due under the contract for deed.

On father’s request for reconsideration, the district court reversed itself and vacated the injunction, ruling that (a) the dissolution action was not a cause of action “under or in relation to” the contract for deed, which is a prerequisite under Minn. Stat. § 559.211 (2000), for an action to suspend cancellation of a contract for deed; (b) the court lacked jurisdiction in the dissolution action to address father’s property rights because the dissolution action was not an in rem proceeding and because service on father was defective; and (c) third-party practice was inappropriate in a dissolution action. Therefore, the district court concluded that its earlier injunction order was void ab initio and that the period to cure the contract-for-deed defaults had expired.

Father filed an eviction action against wife and her tenants. Wife raised the defenses that the contract for deed was actually an equitable mortgage and could only be foreclosed by action; that service of the notice of cancellation was defective; and that father lacked standing to sue. The district court entered an eviction judgment, ruling that father was entitled to immediate possession of the house, but stayed the writ of recovery. Wife appealed both the eviction judgment and the dissolution order vacating the injunction. This court consolidated the appeals.

ISSUES

I. Is a dissolution action “an action arising under or in relation to a contract for the conveyance of real estate or any interest therein” for purposes of seeking an injunction under Minn.Stat. § 559.211 (2000)?

II. Were wife’s defenses in the eviction action precluded by determinations made in the dissolution action?

ANALYSIS

I

The district court vacated its injunction and refused to suspend father’s cancellation of the contract because (1) “third party practice is not allowed in a marriage dissolution” and (2) a dissolution action does not qualify under Minn.Stat. § 559.211 (2000). We disagree with the district court’s first reason but agree with the second.

Third-Party Practice

The district court focused its discussion of third-party practice in a dissolution action on Oldewurtel v. Redding, 421 N.W.2d 722 (Minn.1988). Oldewurtel addressed the question of whether third parties who had been granted security interests in marital and nonmarital property by a husband had priority over the interests granted to wife in the dissolution action. Id. This court had approved the joinder of the secured parties to the dissolution action, stating that it “reduee[d] the multiplicity of lawsuits which would result if [the wife] were forced to institute independent legal proceedings.” Redding v. Olde- wartel, 411 N.W.2d 231, 234 (Minn.App.1987). The supreme court approved the joinder, but on different grounds. Oldewurtel, 421 N.W.2d at 726. It held that the secured parties had “waived” any objections to improper joinder by not making timely objections, and that the district court’s statutory obligation to assure an equitable division of marital property was “sufficient to allow the dissolution court jurisdiction to join [the secured parties.]” Id. (Citation omitted.) 421 N.W.2d at 726. Without defining the limits of Oldewurtel, we can at least conclude, contrary to the district court’s ruling, that third-party practice is not categorically prohibited in dissolution proceedings.

Minn.Stat. § 559.21

This does not mean that third-party practice was appropriate here. Wife sought to join father to the dissolution action in order to enjoin father’s attempt to cancel the contract for deed. But the authority to enjoin the cancellation of a contract for deed is limited, by statute, to “an action arising under or in relation to a contract for the conveyance of real estate or any interest therein.” Minn.Stat. § 559.211, subd. 1 (emphasis added). In rejecting wife’s arguments that a dissolution action could qualify under section 559.211, the district court said:

“Marriage dissolution is a statutory action and the scope of the Court’s authority in such an action is limited to that as is granted by statute.”

The court noted the narrow scope of dissolution actions, as discussed in Melamed v. Melamed, 286 N.W.2d 716, 718 (Minn.1979), where the supreme court held that the district court did not have the power to award a property interest to the parties’ children because “no statute confers such authority on the court.”

Wife argues that the district court’s analysis is defective because, after Me-lamed, the legislature amended MinmStat. § 518.58 (1978) to include provisions authorizing the district court, in a dissolution action, to order the sale of marital assets. See 1981 Minn. Laws ch. 349, § 7 (now codified, with amendments, at Minn.Stat. § 518.58, subd. 3 (2000)). While the amended statute allows a district court to direct the sale of a marital asset (here, husband-and-wife’s vendee’s interest in the contract for deed), the statute does not authorize the district court to adjudicate the interests of third parties.

Alternatively stated: While a dissolution action that utilizes MinmStat. § 518.58, subd. 3, could be said to relate to the married parties’ interests in a contract for deed, we cannot say that it relates to the contract for deed. And, because it is obvious that the dissolution did not arise “under” the contract for deed, we conclude that a dissolution proceeding is not an “action under or relating to” the contract for deed under Minn.Stat. § 559.211. See Smith v. Spitzenberger, 363 N.W.2d 470, 472 (Minn.App.1985) (stating that “[u]nder Section 559.211 and principles of equity, a trial court may not grant injunctive relief unless an underlying cause of action exists. ‘Injunctive relief is a remedy and not, in itself, a cause of action and a cause of action must exist before injunctive relief is granted.’ “ (emphasis in original) (quotation omitted)).

Moreover, compliance with Minn. Stat. § 559.211 has a second prong: that the requirements of Minn. R. Civ. P. 65 be satisfied. Rule 65 requires a threat of immediate, irreparable injury. Minn. R. Civ. P. 65. Here, however, there could be no immediate or irreparable injury from denying an injunction in the dissolution action because wife had the opportunity to start a separate action under Minn.Stat. § 559.221 to enjoin father’s attempt to cancel the contract for deed. Further, if husband’s failure to make the contract-for-deed payments was to blame for father’s attempt to cancel the contract for deed, the district court was required, in the dissolution action, to compensate wife for any loss associated with husband’s conduct. See MinmStat. § 518.58, subd.la (2000) (stating that if the court finds one party has transferred, encumbered, concealed, or disposed of marital property in a manner that is not in the usual course of business or for the necessities of life, “the court shall compensate the other party by placing both parties in the same position that they would have been in” if the improper disposition of the property had not occurred) (emphasis added); Minn.Stat. § 645.44, subd. 16 (2000) (stating that “ ‘shall’ is mandatory”).

Thus, because any potential injury could have been avoided by following the proper procedure and because any injury actually suffered as a result of any improper conduct by husband is something for which there is a legal remedy, we cannot say that Rule 65 was satisfied here. Accordingly, we affirm the district court’s order in the dissolution action rejecting the joinder of father as a third-party respondent and vacating the injunction.

II

In the separate eviction action, wife’s answer raised several defenses, including objections to service of the notice of cancellation and the defense of equitable mortgage. The district court determined that wife’s service defenses were not properly before the eviction court because they had been decided adversely to wife in the dissolution action. But, because the district court lacked jurisdiction in the dissolution action to address father’s attempted cancellation of the contract for deed, the rulings in the dissolution action were not binding in the subsequent eviction proceeding. See, e.g., Hauser v. Mealey, 263 N.W.2d 803, 808 (Minn.1978) (stating generally that “a judgment rendered by a court which lacks jurisdiction to hear a case does not have the effect of res judica-ta”).

Wife asserted the defense that the contract for deed was really an equitable mortgage that must be foreclosed by action, not by notice. The district court did not specifically address this defense. Wife also argues that

the trial court should have invoked its equitable powers at the unlawful detain-er hearing to declare that equity would not permit [father and husband] to act as they had in causing the default.

Both of these equitable defenses are available to wife in a proper proceeding. See Coddon v. Youngkrantz, 562 N.W.2d 39, 44 (Minn.App.1997) (holding that equitable defenses to a contract for deed cancellation could be asserted even though the period of redemption had expired), review denied (Minn. July 10, 1997). But the question presented is whether they can be properly asserted in an eviction action.

The present statutory provisions for an eviction action replaced those that previously authorized an “unlawful detainer” action. See 1998 Minn. Laws ch. 253 (repealing the unlawful detainer provisions of chapter 566 and enacting new provisions to be codified at chapter 504A); 1999 Minn. Laws ch. 199, art. 1 (repealing chapter 504A and replacing it with what is now codified at chapter 504B regarding “evictions”). Under the former Chapter 566, unlawful detainer actions were viewed as summary proceedings with limited scope that did not allow the assertion of equitable claims or defenses. See Fritz v. Warthen, 298 Minn. 54, 58-59, 213 N.W.2d 339, 341-42 (1973) (discussing summary nature of unlawful detainer proceeding); Dahlberg v. Young, 231 Minn. 60, 65, 42 N.W.2d 570, 574 (1950) (stating “[a]n equitable matter which requires affirmative relief to make it a defense per se cannot be interposed in unlawful-detainer proceedings” (citation omitted)).

“Whether the scope of eviction proceedings under Chapter 504B is as limited as that of unlawful detainer proceedings under the former Chapter 566 has not been definitively addressed. On the one hand, we note that chapter 504B defines “eviction” as “a summary court proceeding to remove a tenant or occupant from or otherwise recover possession of real property.” Minn.Stat. § 504B.001, subd. 4 (2000) (emphasis added). This aspect of an eviction action is comparable to the summary nature of the former unlawful-detainer proceeding, which was one of the factors used to conclude that it was an inappropriate proceeding for equitable claims and defenses. See Gallagher v. Moffet, 233 Minn. 330, 333, 46 N.W.2d 792, 793 (1951) (stating that an unlawful detainer proceeding “merely determines the right to present possession and does not adjudicate the ultimate legal or equitable rights of ownership possessed by the parties” (citation omitted)). But, one of the other factors that limited the scope of an unlawful de-tainer proceeding was the absence of equitable powers in the municipal courts that originally heard those proceedings. Eviction actions are now heard by district courts with full equitable powers.

This court recently affirmed a district court’s dismissal of counterclaims raised in an eviction proceeding where the counterclaims challenged the validity of the mortgage foreclosure underlying the eviction proceeding. Amresco Residential Mort. Corp. v. Stange, 631 N.W.2d 444 (Minn.App.2001). While this court noted that eviction cases are now heard by district courts with equitable powers, we affirmed the dismissal of the counterclaims because an “alternate process” was available for their resolution and, therefore, there was no need “to interfere with the summary nature of eviction proceedings.” Id. at 445-46. This court noted that a party to such an alternate proceeding could seek to enjoin the prosecution of the eviction action pending determination of its challenges. Id.

Amresco strikes a balance between the summary nature of eviction actions and Minn. Const, art. 1, § 8, which provides that “[ejvery person is entitled to a certain remedy in the laws for all injuries or wrongs which he may receive[.]” Thus, to the extent wife has the ability to litigate her equitable mortgage and other claims and defenses in alternate civil proceedings, it would be inappropriate for her to seek to do so in the eviction action; only if the eviction action presents the only forum for litigating these claims would it be appropriate for the district court to entertain them in that action.

Unfortunately, we cannot determine on the record before us whether the eviction action was wife’s only opportunity to address her claims and defenses. We note that wife sued husband and father in a separate action on February 9, 2000, but we lack information about that action. For this reason we remand the eviction action for the district court to (1) address wife’s service claims; (2) address the propriety of entertaining wife’s equitable defenses in the eviction action or in an alternate proceeding; and, if appropriate, (3) decide the equitable defenses.

DECISION

While third-party practice is not categorically forbidden in dissolution actions, a dissolution is not an action “under or relating to” a contract for deed for purposes of Minn.Stat. § 559.211 (2000). Therefore, we affirm the district court’s decision to vacate the joinder of father as a third-party respondent in the dissolution action and the injunction suspending father’s attempt to cancel the contract. Because the dissolution court’s ruling on the adequacy of father’s service of the notice to cancel the contract for deed was not binding in the eviction action and because wife’s equitable defenses are not foreclosed by any of the proceedings to date, we remand that action for the court to address the service defenses and to determine whether the equitable defenses should be heard in the eviction action.

Affirmed in part, reversed in part, and remanded.

      . Husband's father is also a respondent in this appeal.

      . This court inadvertently misspelled the respondent's name in its opinion. Oldewurtel, 421 N.W.2d at 724 n. 1.

      . This reading of Oldewurtel is consistent with the relevant statutes, rules, and caselaw. See, e.g., Minn.Stat. § 518.005, subd. 1 (2000) (stating "[u]nless otherwise specifically provided, the rules of civil procedure for the district court apply to all proceedings under this chapter”); Minn. R. Civ. P. 19.01-04 (addressing joinder of parties required for adjudication); Minn. R. Civ. P. 20.01-02 (addressing permissive joinder of parties); Minn. R. Civ. P. 21 (addressing misjoinder and non-joinder of parties); Minn. R. Civ. P. 22 (addressing interpleaders); Murray v. Antell, 361 N.W.2d 466, 468-69 (Minn.App.1985) (affirming district court’s order allowing joinder of stepfather in former husband’s motion to modify custody).

      . In the dissolution action, wife submitted an affidavit stating that she had been "served” with father’s notice of cancellation. While this statement would be admissible in evidence, it does not preclude wife from offering evidence to explain or contradict her use of the word "served.”


author: HALBROOKS, Judge.

text:
    In the Matter of the WELFARE OF W.A.H., Child.
    No. C5-01-1174.
    Court of Appeals of Minnesota.
    March 26, 2002.

      John M. Stuart, State Public Defender, Charlann Winking, Assistant Public Defender, Minneapolis, for appellant.
    Mike Hatch, Attorney General, St. Paul; and David M. Olin, Pennington County Attorney, Alan G. Rogalla, Assistant County Attorney, Thief River Falls, for respondent.
    Considered and decided by CRIPPEN, Presiding Judge, PETERSON, Judge, and HALBROOKS, Judge.
   OPINION

HALBROOKS, Judge.

Appellant W.A.H. challenges his adjudication of delinquency for tampering with a motor vehicle, second-degree assault, and disorderly conduct. He contends that (1) the evidence is insufficient to prove that he tampered with a vehicle or committed an assault when he brandished a knife while being chased, and (2) his adjudication of disorderly conduct violates the First Amendment because the record does not establish that his language amounted to “fighting words.” Because we find that the evidence supports appellant’s adjudication of second-degree assault, we affirm on that count. But because we conclude that appellant’s conduct did not constitute “tampering” with a vehicle and that his language did not amount to “fighting words,” we reverse his adjudications on those counts and remand to the trial court for a determination of the impact of our decision on the disposition of appellant’s case.

FACTS

On the evening of March 15, 2001, Kevin Binkley was parked outside his Thief River Falls apartment, talking on his cellular phone, when he saw 16 year old appellant W.A.H. walk up to the parked vehicle owned by his friend, Benjamin Nentri. Binkley watched appellant as appellant looked inside the vehicle with a flashlight and pulled on the car door handle. At that point, Binkley got out of his vehicle and yelled at appellant, who ran away.

Binkley went into his apartment and told another friend, Ryan Rolloff, what had happened. The two men decided to go look for appellant. When they caught up to appellant, who was on foot, they jumped out of the vehicle and yelled at appellant to stop. Appellant continued running, with Rolloff chasing him down an alley, while Binkley got back in the vehicle and attempted to cut off appellant.

During the chase, appellant stopped and started running again three or four times, each time threatening Rolloff with a knife. Once appellant was trapped between Rol-loff and Binkley, Rolloff was able to forcibly take the knife away from him.

Binkley and Rolloff restrained appellant and walked him to a nearby house to call the police. Appellant began yelling that he was being attacked with a knife and that Rolloff and Binkley were going to beat him up. While waiting for the police to arrive, appellant continued to yell, using frequent obscenities.

Appellant was charged with tampering with a vehicle under Minn.Stat. § 609.546(2) (2000), second-degree assault under Minn.Stat. § 609.222 (2000), and disorderly conduct under Minn.Stat. § 609.72, subd. 1(3) (2000). Appellant filed a notice of a claim of self-defense.

Following a bench trial, the trial court adjudicated appellant delinquent on all charges. Appellant was placed on indefinite probation and committed to the Commissioner of Corrections at MCF-Red Wing. This appeal follows.

ISSUES

1. Does appellant’s conduct constitute “tampering” with a motor vehicle under MinmStat. § 609.546(2) (2000)?

2. Was there sufficient evidence to sustain appellant’s adjudication of delinquency for second-degree assault?

3. Does appellant’s adjudication of delinquency for disorderly conduct violate the First Amendment?

ANALYSIS

1. Does appellant’s conduct constitute “tampering” with a motor vehicle?

A person who intentionally “tampers with or enters into or on a motor vehicle without the owner’s permission” is guilty of a misdemeanor under Minn. Stat. § 609.546(2) (2000). The trial court concluded that appellant “tampered” with Nentri’s car by “pulling on the door handle, without [the owner’s] consent.” Appellant argues that this conduct is insufficient under the statute, because “tampering” requires some alteration, improper change, or actual trespass to a car.

Whether the trial court properly interpreted a statute is a question of law, which this court reviews de novo. State v. Murphy, 545 N.W.2d 909, 914 (Minn.1996). This is a case of first impression, as neither the legislature nor the Minnesota courts have defined the phrase “tampers with” as - it is used in Minn.Stat. § 609.546(2).

Black’s Law Dictionary defines “tamper” as “to meddle so as to alter (a thing); esp., to make changes that are illegal, corrupting, or perverting” or “to interfere improperly; to meddle.” Black’s Law Dictionary 1468 (7th ed.1999). Similarly, the American Heritage Dictionary defines “tamper” as “to interfere in a harmful manner,” “to tinker with rashly or foolishly,” or “to engage in improper or secret dealings, as in an effort to influence.” The American Heritage Dictionary 1832 (3d ed.1992). While these definitions are helpful in providing a general understanding of the term, it is necessary for us to determine the specific meaning of the phrase in the context of the statute. For assistance, we look to the legislature’s use of the term “tampering” in other statutes as well as how other jurisdictions have interpreted similar laws.

Our legislature has defined “tampering” in at least three other statutes. In prohibiting tampering with utility meters, the legislature defined “tampering” as “damaging, altering, adjusting, or obstructing.” Minn.Stat. § 325E.026, subd. 1(b) (2000). Similarly, when prohibiting tampering with a fire alarm system, it defined “tampering” as “to intentionally disable, alter, or change.” Minn.Stat. § 609.686, subd. 3 (2000). Finally, the legislature referred to “tampering with a witness” when one “intentionally prevents or dissuades or intentionally attempts to prevent or dissuade,” “intentionally coerces or attempts to coerce,” or “intentionally causes injury or threatens to cause injury.” Minn.Stat. § 609.498, subd. l(a)-(c) (2000). Each of these definitions of “tampering” focuses on prohibiting conduct that results in change or alteration. Given this common thread, it seems likely that the legislature intended the same emphasis to apply to the vehicle-tampering statute.

It is also instructive to survey courts from other states to ascertain how they have interpreted their own, similar statutes. In State v. Arnett, 168 N.W.2d 807 (Iowa 1969), the Iowa Supreme Court interpreted a statute, currently found at Iowa Code § 321.78 (1997), that provides:

Any person who either individually or in association with one or more other persons willfully injures or tampers with any vehicle or breaks or removes any part or parts of or from a vehicle without the consent of the owner is guilty of a simple misdemeanor.

In Arnett, a witness observed the two defendants “messing around with the top” of a vehicle and then saw one go inside the vehicle while the other remained “alongside of the car * * * working with his hands.” 168 N.W.2d at 807-08. When the defendants were arrested, the police found no tools in their possession and the vehicle had not been altered or changed. Id. at 808. On appeal, the court examined several other jurisdictions' and authorities and found that “[t]ampering has been defined as the making of unauthorized alterations or changes.” Id. Because there was no evidence of a change or alteration, the court reversed the defendants’ convictions. Id.

Likewise, in Brown v. State, 546 P.2d 1023 (Okla.Crim.App.1976), the Oklahoma Court of Criminal Appeals interpreted a statute, now codified at Okla. Stat. Ann. tit. 47, § 4-104(a) (West 2000), that provides:

A person, who, with intent and without right to do so, injures or tampers with any vehicle * * * or in any other manner damages any part or portion of said vehicle * * * or any accessories, appurtenance or attachments thereto is guilty of a misdemeanor.

In Brotm, one defendant raised the hood of the vehicle and placed his hand on the carburetor while the other defendant entered the vehicle and positioned himself across the front seat. 546 P.2d at 1024. But before they “could loosen a bolt or make any unauthorized physical alteration of the vehicle,” both defendants were apprehended. Id. at 1026. Following a conviction, the appellate court examined legislative intent and concluded that “tamper” required an unauthorized physical alteration or change, not merely a simple trespass. Id. Because there was no evidence that either defendant physically altered the vehicle, the court reversed the convictions. Id.

Finally, in State v. Hale, 463 S.W.2d 869 (Mo.1971), the Missouri Supreme Court interpreted a statute which provided, “No person shall drive, operate, use or tamper with a motor vehicle or trailer without the permission of the owner thereof.” Id. at 872 (interpreting predecessor statute to Mo. Ann. Stat. § 569.090, subd. 1 (West 2000)). In Hale, the police found the defendant and another person hooking a tow cable to a stranded car in an attempt to tow it away. Hale, 463 S.W.2d at 870. After determining that the defendant had no authority to do so, the police arrested him and he was convicted of tampering with a motor vehicle. Id. On appeal, the court reviewed several cases and held that “tampering” occurred when the vehicle was either altered or changed or substantial steps were taken to do so. Id. at 872. Although the defendant had not yet altered or changed the vehicle, the court held he had clearly taken steps to do so and was thwarted only by the arrival of the police. Id. As a result, the conviction was affirmed. Id. at 873.

In addition to the decisions of courts from other jurisdictions, there are states with similar laws that inherently provide meaning to the term “tampering” by articulating the purpose underlying the act. For example, a number of states prohibit “tampering with a vehicle” if done “for the purpose of injuring, defacing or destroying the vehicle, or temporarily or permanently preventing its useful operation.” Idaho Code § 49-229 (2000). See, e.g., Cal. Veh. Code § 10852 (West 2000); Del.Code Ann. tit. 21, § 6701 (1995); Nev.Rev.Stat. § 205.274 (2001).

Based on our analysis, we are persuaded that the phrase “tampers with,” as used in Minn.Stat. § 609.546(2), requires that an individual engage in conduct that results in some degree of change or alteration to, or substantial interference with a vehicle. This definition is consistent with our legislature’s use of the term “tamper” in other statutes and seems to address the conduct that the legislature is seeking to prohibit in the context of motor vehicles. As applied to this record, we find that the evidence is insufficient to establish that appellant tampered with Nentri’s vehicle when he merely looked inside the car with a flashlight and pulled on the car door handle. Whether or not appellant’s actions, if allowed to continue, might have escalated to effect some change to or substantial interference with the vehicle, this conduct did not. We, therefore, reverse the adjudication of delinquency on this count.

2. Is there sufficient evidence to sustain appellant’s adjudication of delinquency for second-degree assault?

Appellant argues that the evidence is insufficient to support his adjudication of second-degree assault because the state failed to prove beyond a reasonable doubt that he was not acting in self-defense. When reviewing a challenge to the sufficiency of the evidence, this court examines the record and determines if the evidence, viewed in the light most favorable to the conviction, is sufficient to sustain the fact-finder’s conclusions. State v. Webb, 440 N.W.2d 426, 430 (Minn.1989). We will not reverse a decision if the fact-finder, acting with proper respect for the principles of presumed innocence and proof beyond a reasonable doubt, could have reasonably found as it did. State v. Alton, 432 N.W.2d 754, 756 (Minn.1988).

To prove self-defense, a defendant must show that (1) he was not the original aggressor and did not provoke the other party, (2) he actually and honestly believed that he was in imminent danger of death or great bodily harm and that the danger could be averted only by the actions taken, (3) he was reasonable in this belief, and (4) there was no reasonable possibility that he could retreat to avoid the danger. State v. Basting, 572 N.W.2d 281, 285 (Minn.1997). Once the defense is raised, the state must disprove at least one of the elements beyond a reasonable doubt. State v. Spaulding, 296 N.W.2d 870, 875 (Minn.1980). Here, we conclude the trial court could have reasonably found that the state disproved at least two of the elements beyond a reasonable doubt.

First, appellant must have reasonably believed he was in imminent danger of death or great bodily harm. While it is undisputed that appellant was chased by Binkley and Rolloff, there is no evidence that either man ever verbally threatened appellant with great bodily harm or death or said anything beyond “stop” and “come here.” Appellant testified that he did not know if Binkley and Rolloff had weapons and that he eventually gave up when he realized that they did not. Appellant was the one with a weapon and he attempted to use it to evade being caught. The trial court found that Rolloff had to forcibly take the knife from appellant.

In addition, the evidence supports the conclusion that appellant did not exhaust his opportunities to retreat. Rather than remaining by the vehicle when BinMey first yelled at him, appellant took off running. Rather than stopping in response to Binkley and Rolloffs instructions, appellant turned around and waved a hunting knife at Rolloff three or four times. There is no evidence that either Binkley or Rol-loff touched appellant other than to forcibly take the knife away and to restrain him until the police arrived.

We conclude that the evidence is sufficient to establish that the state disproved at least two elements of appellant’s self-defense claim. The adjudication of second-degree assault is affirmed.

3. Does appellant’s adjudication of delinquency for disorderly conduct violate the First Amendment?

The trial court found appellant delinquent of disorderly conduct under Minn. Stat. § 609.72, subd. 1(3) (2000), because he

did engage in offensive, obscene, abusive language, as well as offensive, obscene, abusive, boisterous, and noisy conduct which did arouse alarm, anger, and resentment in others.

Appellant contends the statute must be read to prohibit only “fighting words” and that the court’s failure to make findings in this regard renders his adjudication unconstitutional. The state agrees.

When reviewing a claim that an adjudication of disorderly conduct violates the First Amendment, we view the evidence in the light most favorable to the state, but independently determine whether the conduct falls outside constitutional protection. In re the Welfare of M.A.H., 572 N.W.2d 752, 757 (Minn.App.1997).

In upholding the constitutionality of Minn.Stat. § 609.72, subd. 1(3), the Minnesota Supreme Court held that the statute must be construed narrowly so that it only applies to “fighting words.” In re the Welfare of S.L.J., 263 N.W.2d 412, 419 (1978). “Fighting words” are defined as

those personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent reaction or (words) which by their very utterance inflict injury or tend to incite an immediate breach of the peace.

Id. at 418 (quotations omitted). Thus, it is not enough if words are so “offensive, obscene or abusive” that they arouse resentment in others if they do not also tend to immediately incite a breach of the peace or provoke retaliatory action by those to whom they are spoken. Id. at 418-20; see M.A.H., 572 N.W.2d at 758.

Here, the evidence supports the trial court’s finding that appellant used “offensive, obscene, abusive language,” but the trial court did not reach, nor does the record support, a conclusion that the speech amounted to “fighting words.” There is no evidence that appellant’s speech tended to immediately incite a breach of the peace or provoke retaliatory action by those to whom the words were spoken. As a result, appellant’s adjudication of disorderly conduct must be reversed.

DECISION

Because the evidence is sufficient to prove appellant’s adjudication for second-degree assault, that count is affirmed. But appellant’s conduct in looking inside a vehicle with a flashlight and pulling on the car door handle does not constitute “tampering with a vehicle” under Minn.Stat. § 609.546(2) (2000) because he neither changed or altered the vehicle nor sub-stantiaUy interfered with it. Appellant’s adjudication of disorderly conduct is unconstitutional because his conduct did not rise to the level of “fighting words.” As a result, the adjudications of delinquency for tampering with a motor vehicle and disorderly conduct are reversed. We remand to the trial court for determination of the impact of this decision on the disposition of appellant’s case.

Affirmed in part, reversed in part, and remanded.


author: LANSING, Judge.

text:
    STATE of Minnesota, Appellant, v. Kathleen Mary MARSHALL, n/k/a Kathleen Mary Hartmon, Respondent.
    No. C2-01-1309.
    Court of Appeals of Minnesota.
    April 2, 2002.
    Review Denied May 28, 2002.

      Mike Hatch, Attorney General, St. Paul, MN; and James C. Backstrom, Dakota County Attorney, Kathryn M. Keena, Assistant County Attorney, Dakota County Judicial Center, Hastings, MN, for appellant.
    Mark D. Nyvold, Attorney at Law, St. Paul, MN, for respondent.

      Considered and decided by LANSING, Presiding Judge, KLAPHAKE, Judge, and HUSPENI, Judge.

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

   OPINION

LANSING, Judge.

Following indictment for first-degree murder in the 1982 death of her 18 month old son, Mary Hartmon brought a pretrial motion to suppress five statements made to police over the course of nearly 20 years, to sanction the Dakota County Attorney, to limit reference to a missing or destroyed 911 tape, and to dismiss the grand-jury indictment. The district court denied the motions to sanction the county attorney, to dismiss the indictment, and to suppress three of the statements. The court granted the motion to limit reference to the 911 tape and to suppress statements to law enforcement authorities made on January 16, 1985, and November 14, 2000. The state, in this pretrial appeal, challenges that part of the district court’s order suppressing the 1985 and 2000 statements.

FACTS

Kathleen Hartmon’s son, Jeremy, died in his crib on February 19, 1982. Jeremy was 18 months old and had a bronchitis infection that had required medical treatment before his death. On the day of his death, according to Hartmon, he fell asleep on the floor of their apartment and about noon she placed him in his crib.

At 1:09 p.m., Hartmon called 911 and reported that Jeremy was not breathing. Officers arrived at Hartmon’s apartment at 1:12 p.m.; Jeremy was not breathing, had no pulse, and was bluish in color. The ambulance transported Jeremy to Divine Redeemer Hospital and then to Children’s Hospital. Medical personnel were unable to resuscitate him. The original autopsy report indicated that Jeremy died from tracheobronchitis and bronchiolitis, natural causes. In 1984, another medical examiner, in response to police inquiries, changed the cause of death from natural to undetermined. In 2000, that medical examiner, responding to materials submitted by police, changed the cause of death to homicide.

The facts relevant to this appeal revolve around the statements made by Hartmon in January 1985 and November 2000. Hartmon made the January 1985 statements to a Dakota County Sheriffs lieutenant and a detective during a welfare fraud investigation. When Hartmon reported to the probation office, the lieutenant arrested Hartmon on a welfare-fraud warrant. The lieutenant read Hartmon her Miranda rights and asked her if she “wish[ed] to talk to us now?” Hartmon said, “No. I don’t wish to say anything.” The lieutenant and the detective told Hart-mon that she was being arrested for welfare fraud and then began to question Hartmon about Jeremy’s death. During the extended questioning, Hartmon denied any involvement in Jeremy’s death. The detective told Hartmon that he would “keep bothering” her until she told the truth about Jeremy’s death and that he did not believe her when she said she did not kill Jeremy.

The detective told the court that Hart-mon, while being transported in a squad car to the Dakota County jail, confessed to killing Jeremy. Unlike the other two interviews that occurred on this day, no tape recording or transcript exists of this conversation. At the Dakota County jail, the detective continued the questioning after he again read Hartmon her Miranda rights. During this questioning, Hartmon made statements indicating that she did not want Jeremy to suffer and that Jeremy may have been the source of discord between Hartmon and her husband.

On November 14, 2000, two Minnesota Bureau of Criminal Apprehension (BCA) agents arrived at Hartmon’s apartment unannounced shortly before 5 p.m. and told Hartmon they wanted to discuss Jeremy’s death. The interview lasted approximately 90 minutes. Hartmon had been up since 1:30 a.m. that morning, had worked all day, and had not eaten breakfast, lunch, or supper. Hartmon’s seven-year-old daughter was also in the apartment. The agents had the daughter separated from her mother and placed in a back bedroom, where she ate her supper and watched TV. Hartmon was not reunited with her daughter until after the interview.

The BCA agents did not give Hartmon a Miranda warning. Although they did not display their weapons, Hartmon could tell one of them was armed. The agents did not place Hartmon under arrest; however, they did not tell her that she was free to leave or that she was free to end the conversation. Although the agents did not restrict Hartmon’s movements, they did ask Hartmon if there were other exits from the apartment.

Hartmon was distraught throughout much of the interrogation. She cried at several points, at one point stating she couldn’t breathe because she was crying. During most of the interview, Hartmon professed her innocence. However, after the agents had talked at length with her, discussing the possible sentence she would receive, the spiritual consequences of her refusal to confess, the continued persistence of police in seeking her confession, and other factors, Hartmon finally told the agents that she took Jeremy’s life away from him by holding a washcloth over his mouth for less than a minute.

The district court issued an order suppressing Hartmon’s January 16, 1985, confession because police had failed to honor her invocation of the right to silence. The court made extensive factual findings relating to the November 14, 2000 statement and ruled that because the statement was not made voluntarily it would be inadmissible at trial. The court also denied Hart-mon’s motion to dismiss the grand jury indictment and her motion to sanction the prosecution for alleged discovery violations.

In this pretrial appeal, the state challenges the suppression of the January 1985 and the November 2000 statements.

ISSUES

I. Did the district court err in suppressing Hartmon’s January 1985 statements as a violation of her right to remain silent?

II. Did the district court err in suppressing Hartmon’s November 2000 statements as involuntary and, therefore, in violation of her right to due process?

ANALYSIS

We will reverse a district court’s pretrial determination in a criminal prosecution only if the state demonstrates clearly and unequivocally that the district court erred in its judgment and the error will have a critical impact on the outcome of the trial absent reversal. State v. Joon Kyu Kim, 398 N.W.2d 544, 547 (Minn.1987). The critical impact standard is demanding but it “does not require that the suppression order render the available proof insufficient as a matter of law, or so weak as to effectively destroy a successful prosecution.” State v. Edrozo, 578 N.W.2d 719, 723 (Minn.1998). It is undisputed that the suppression of the statements may have a critical impact on the outcome of the trial.

I

Under the Fifth Amendment no person may be compelled to be a witness against himself or herself in a criminal case. U.S. Const, amend. V. The right to cut off questioning is essential in guarding an accused’s Fifth Amendment protection against self-incrimination. See Michigan v. Mosley, 423 U.S. 96, 104, 96 S.Ct. 321, 326, 46 L.Ed.2d 313 (1975) (labeling right to remain silent a “critical safeguard”). An accused, through the exercise of the option to terminate questioning, “can control the time at which questioning occurs, the subjects discussed, and the duration of the interrogation.” Id. at 103-04, 96 S.Ct. at 326. The right to remain silent “counteracts the coercive pressures of the custodial setting.” Id. at 104, 96 S.Ct. at 326.

“[I]f the individual indicates in any manner, at any time prior to or during questioning, that [he or she] wishes to remain silent, the interrogation must cease.” State v. Wilson, 535 N.W.2d 597, 602 (Minn.1995) (quoting Miranda v. Arizona, 384 U.S. 436, 473-74, 86 S.Ct. 1602, 1627, 16 L.Ed.2d 694 (1966)). The judiciary, however, should not substitute its judgment on the meaning of a suspect’s actions for the judgment of police officers. State v. Williams, 535 N.W.2d 277, 283 (Minn.1995). Thus, for constitutional protections to apply, an accused must unambiguously and unequivocally invoke the right to remain silent. Id. at 285; Wilson, 535 N.W.2d at 603.

An appellate court reviews the factual issue of whether an accused unequivocally and unambiguously invoked the right to remain silent for clear error. State v. Hannon, 636 N.W.2d 796, 804 (Minn.2001) (applying the clear-error standard in reviewing district court’s finding that accused did not unambiguously and unequivocally invoke his right to counsel). In two recent cases, the Minnesota Supreme Court has adopted a bright-line approach to reviewing invocation of Miranda rights. See id. at 804-05 (finding unequivocal and unambiguous invocation of right to counsel when accused stated, “Can I have a drink of water and then lock me up — I think we really should have an attorney.”); State v. Day, 619 N.W.2d 745, 750 (Minn.2000) (finding unequivocal and unambiguous invocation of right to remain silent when accused stated, “Said I don’t want to tell you guys anything to say about me in court.”). The inquiry is whether the accused asserted his right in a way that a reasonable police officer in the same circumstances would understand the statement to be an invocation of the right to remain silent. Id. at 749.

The district court found that after the investigators read Hartmon her Miranda rights they asked if she would like to speak with them. Hartmon responded, “No. I don’t wish to say anything.” We agree with the district court that Hart-mon’s response unequivocally and unambiguously invoked her right to silence. See id. at 749-50 (noting that accused clearly invoked right to remain silent by making a statement invoking right immediately after being read Miranda rights).

The state contends that, after invoking her right to silence, Hartmon essentially withdrew it by saying “What am I ... what am I.... ” This claim must be analyzed in the context of whether the investigating officers scrupulously honored Hartmon’s invocation of her Fifth Amendment right. See Mosley, 423 U.S. at 102-06, 96 S.Ct. at 325-27; Day, 619 N.W.2d at 750.

Once an accused has invoked the right to remain silent, investigating officers must cease the interrogation. State v. Thieman, 439 N.W.2d 1, 5 (Minn.1989). Investigating officers violate the accused’s right to remain silent when they refuse to stop the interrogation or attempt to wear down the accused’s resistance and force a change of mind. Day, 619 N.W.2d at 750 (citing Mosley, 423 U.S. at 105-06, 96 S.Ct. at 327). Importantly, the United States Supreme Court has noted that when investigating officers resume interrogation after a “momentary cessation,” the purpose of Miranda is frustrated. Mosley, 423 U.S. at 102, 96 S.Ct. at 326.

After Hartmon said “No. I don’t wish to say anything,” the investigating officers began to describe the charges underlying the arrest for welfare fraud. But the officers then abruptly changed the subject of the interrogation to the death of Jeremy. One of the officers chastised Hartmon for not returning his telephone inquiries about Jeremy’s death and told Hartmon that her life was not going to get “squared away” until the police resolved the investigation into Jeremy’s death. This same officer, knowing that Hartmon had strong religious beliefs, attempted to exploit those beliefs to get her to talk to him. One of the officers continued the questioning about Jeremy’s death as they transported Hartmon to the Dakota County jail. At the jail, the officers again initiated interrogation about Jeremy’s death. After a few hours of questioning, Hartmon finally made statements suggesting that she did not want Jeremy to suffer and that Jeremy created tension in her marriage.

This extended interrogation did not “scrupulously honor” Hartmon’s invocation of her right to counsel. See Mosley, 423 U.S. at 104, 96 S.Ct. at 326 (footnote omitted). Not only was the questioning persistent, it was virtually uninterrupted by Hartmon’s unequivocal, unambiguous response, “No. I don’t wish to say anything.” The district court did not err in suppressing Hartmon’s January 1985 statements.

Hartmon alternatively argues that the statements should be suppressed because she was represented by counsel at the time of the questioning, and counsel had sent Dakota County a letter stating that Hart-mon should not be questioned unless the attorney was present, and the investigators violated the right to have counsel present. Because we affirm the district court’s suppression for failure to cease questioning when Hartmon invoked her right to counsel, we do not address Hart-mon’s alternative ground.

II

We now turn to the question of whether Hartmon’s November 2000 statements were voluntary.

In reviewing a confession for voluntariness, courts must consider the totality of the circumstances, including factors that focus on the defendant and factors that focus on the interrogation process itself. State v. Ritt, 599 N.W.2d 802, 808 (Minn.1999). The subjective factors include, but are not limited to, age, maturity, intelligence, education, and experience with the criminal justice system. State v. Pilcher, 472 N.W.2d 327, 333 (Minn.1991). In reviewing the interrogation process, courts often focus on the length of the interrogation, the adequacy or lack of warnings, the denial of physical needs during the interrogation, the denial of access to friends and family during the interrogation, and the statements of the interrogator, specifically whether the statements are of the character that would convince an innocent person to confess. Id.; State v. Slowinski, 450 N.W.2d 107, 112 (Minn.1990).

Both the United States Supreme Court and the Minnesota Supreme Court apply independent appellate review to the issue of whether a defendant’s statements were given voluntarily. Miller v. Fenton, 474 U.S. 104, 112, 106 S.Ct. 445, 450-51, 88 L.Ed.2d 405 (1985); Ritt, 599 N.W.2d at 808. But the legal question is predicated on the district court’s fact findings. Ritt, 599 N.W.2d at 808. The district court made detailed and careful findings on the issue of whether Hartmon’s November 2000 statements were voluntary.

At the time of the November 2000 interrogation, Hartmon was 46 years old, had been married three times, had given birth to four children, and was raising a seven-year-old daughter on her own. She did not complete high school but had obtained her GED. She had been regularly employed as a newspaper and advertisement delivery person for two-and-one-half years. Hartmon had prior experience with the criminal justice system. She had previously been on probation for aggravated forgery and had previously been convicted of welfare fraud. These factors suggest that Hartmon was an experienced, mature adult. But the district court also found that Hartmon was of limited intelligence, as demonstrated by a psychological evaluation completed two-and-one-half years after Jeremy’s death that showed Hartmon had low-average to average intelligence. The court also cited Hartmon’s statements during the interrogation. The psychological evaluation also indicated that Hartmon had a significant need to appear in a favorable light and was psychologically dependent, immature, and naive.

We begin our analysis of the interrogation process by noting that the BCA agents did not read Hartmon her Miranda rights during the entire 90 minute interrogation. See Slowinski, 450 N.W.2d at 111 (concluding confession was voluntary, in part because the defendant was read his Miranda rights at the outset). Although the district court concluded that Hartmon was not in custody during the interrogation, Hartmon was confronted by two officers, one of whom she could tell was armed, who inquired about the apartment’s exits and told Hartmon to keep the door open when she used the bathroom. Therefore, at least some of the inherently coercive aspects of custodial interrogation were present.

The BCA agents appeared at Hartmon’s door without warning. Cf. Ritt, 599 N.W.2d at 809 (noting that defendant, whose statement was ruled voluntary, “had scheduled the time of the interview” with police). The investigators suggested that Hartmon’s seven-year-old daughter, for whom Hartmon was preparing supper, watch television and eat her supper in another room of the apartment so she would not overhear the substance of the conversation. At one point, an officer checked on Hartmon’s daughter. Although the evidence does not show the agents prevented Hartmon from having any contact with her daughter, they effectively discouraged it. Cf. Slowinski, 450 N.W.2d at 111 (noting defendant, although his first request to speak with his wife was refused, was eventually allowed to call her).

Three times during the interrogation, Hartmon became so emotionally upset that she cried, stated that her “head is swimming,” and had difficulty breathing. Cf. Ritt, 599 N.W.2d at 810 (noting defendant “did not cry or break down emotionally” during police interrogation). Although the agents expressed concern and asked if Hartmon needed medical assistance, they did not offer to suspend their questioning. See Pilcher, 472 N.W.2d at 334 (noting that an emotionally distressed defendant should be allowed an opportunity to regain composure before confession and indicating that emotional state may threaten the defendant’s ability to voluntarily confess). Moreover, the officers exploited Hartmon’s religious beliefs, telling her she had a mortal sin on her soul and that she would go to hell unless she would “get forgiveness” for it by confessing. This line of questioning, which apparently prompted Hartmon’s emotional distress, was inherently coercive. See generally Brewer v. Williams, 430 U.S. 387, 412, 97 S.Ct. 1232, 1246, 51 L.Ed.2d 424 (1977) (Powell, J., concurring) (noting that officer’s speech about ensuring proper “Christian burial” for victim exploited religious convictions of defendant who had a history of mental disorders).

The record establishes that Hartmon was both tired, having been up since 1:30 a.m., and hungry, having had little to eat during the day. Cf. State v. Ritt, 599 N.W.2d at 810 (noting defendant “gave no indication of being overly tired”). Although it was -the supper hour, there is no indication that the agents offered to let Hartmon eat, although she did smoke. Cf. Slowinski, 450 N.W.2d at 111 (noting the defendant was allowed to smoke and drink soft drinks).

One of the agents testified at the omnibus hearing that he went to Hartmon’s apartment intending to secure a confession. Although the officers’ intent is not determinative of the nature of the interview, their relentless questioning, in the face of Hartmon’s insistence on her innocence, contributed to the coercive atmosphere of the interrogation. Cf. State v. Mills, 562 N.W.2d 276, 283 (Minn.1997) (noting that police, before obtaining statement held voluntary, did not view defendant as a suspect and were talking to her merely to establish rapport and understand the case). One of the agents implied that the questioning would continue until Hartmon kicked them out of the apartment.

The ultimate question in determining whether a confession is voluntary is whether the police conduct would have overborne the will of an innocent person. Ritt, 599 N.W.2d at 810. The BCA agents’ interrogation of Hartmon created a coercive atmosphere in Hartmon’s apartment, culminating almost 20 years of repeated investigatory pursuit and targeting Hart-mon’s particular vulnerabilities in a way that persuaded the district court that Hartmon’s statements were testimonially untrustworthy. We agree. The questioning was not merely “unpleasant,” see id., it was, given the totality of the circumstances, inherently coercive.

The United States Supreme Court has held “certain interrogation techniques, either in isolation or as applied to the unique characteristics of a particular suspect, are so offensive to a civilized system of justice that they must be condemned under the Due Process Clause of the Fourteenth Amendment.” Miller, 474 U.S. at 109, 106 S.Ct. at 449 (1985). Expressing the same principle,. the Minnesota Supreme Court has observed that the “[b]lood of the accused is not the only hallmark of an unconstitutional inquisition * * * and the use of promises, trickery, deceit, and stress-inducing techniques in obtaining confessions have all been condemned.” Pilcher, 472, N.W.2d at 333 (citations omitted).

Police investigators face substantial obstacles in resolving an investigation of a death that occurred almost twenty years ago; confessions are one of the limited avenues available to them. But incriminating statements produced by coercion are inherently untrustworthy and undermine fundamental concepts of due process. State v. Garner, 294 N.W.2d 725, 727 (Minn.1980). “We have learned the lesson of history, ancient and modern, that a system of criminal law enforcement which comes to depend on the ‘confession’ will, in the long run, be less reliable and more subject to abuses than a system which depends on extrinsic evidence independently secured through skillful investigation.” Escobedo v. Illinois, 378 U.S. 478, 488-89, 84 S.Ct. 1758, 1764, 12 L.Ed.2d 977 (1964) (footnotes omitted).

We affirm the district court’s suppression of the November 2000 statements as violating Hartmon’s due process rights.

DECISION

The district court did not err in suppressing Hartmon’s January 1985 statements because Hartmon invoked her right to remain silent and the investigators did not scrupulously honor that right. The investigators’ conduct in obtaining the November 2000 statement was overly coercive and violated Hartmon’s due process rights. We affirm the suppression of both statements.

Affirmed.


author: HUSPENI, Judge.

text:
    Ge LEE, Appellant, v. McWillie HUNT, Respondent.
    No. C9-01-1730.
    Court of Appeals of Minnesota.
    April 2, 2002.

      Richard D. O’Dea, Palmer, Cody & O’Dea, LLC, Roseville, for appellant.
    Michael L. Rerat, Attorney at Law, Edi-na, for respondent.
    Considered and decided by RANDALL, Presiding Judge, KLAPHAKE, Judge, and HUSPENI, Judge.
   OPINION

HUSPENI, Judge.

Two months after judgment was entered for appellant, respondent moved to amend the judgment by deducting collateral source benefits brought under Minn.Stat. § 65B.51, subd. 1 (2000), of the Minnesota No-Fault Automobile Insurance Act, which contains no deadline for filing such a motion. Appellant objected to the timeliness of the motion, arguing that the ten-day deadline of the collateral source statute, Minn.Stat. § 548.36, subd. 2 (2000), applies to motions for deductions brought pursuant to the no-fault act and that, therefore, the motion to amend the judgment was untimely under Minn. R. Civ. P. 52.02 and 59.03. The district court held that the ten-day deadline did not apply to a motion brought pursuant to the no-fault act and granted the motion to deduct collateral source benefits. Because we conclude that the ten-day deadline set forth in MinmStat. § 548.36, subd. 2, applies in this case, we reverse and remand.

FACTS

In the summer of 1996, appellant Ge Lee and respondent McWillie Hunt were involved in a one-vehicle accident in which Lee sustained injuries. Lee’s no-fault insurer paid $15,669.78 in medical expenses before the case was set for trial. Hunt conceded that her negligence was the cause of the accident, and trial was limited to the issue of damages. The jury, by special verdict, awarded Lee total damages of $32,123, $17,113 of which represented past medical expenses.

After the jury had rendered its verdict, Lee’s counsel sent a letter to Hunt’s counsel stating that Lee would be willing to stipulate to reducing the award of past medical expenses by $15,669.78, in exchange for Hunt stipulating to a credit for the cost of Lee’s PIP benefits. Hunt’s counsel did not respond to this letter.

On August 2, 2001, almost two months after entry of the judgment, Hunt moved to amend the judgment, pursuant to Minn. Stat. § 65B.51, subd. 1 (2000), of the Minnesota No-Fault Automobile Insurance Act (no-fault act), by deducting no-fault collateral source benefits. Lee opposed the motion, arguing that Minn.Stat. § 548.36 (2000) (collateral source statute) imposed a ten-day deadline from date of entry of judgment on filing a motion to determine collateral source benefits.

The district court granted Hunt’s motion to deduct $15,669.78 in collateral source benefits and this appeal resulted.

ISSUES

I. Does the collateral source statute’s requirement that motions for a determination of a collateral source be filed within ten days of entry of judgment apply to motions brought under the no-fault act?

II. Does Hunt’s failure to bring a motion for amended judgment within the time period required by Minn. R. Civ. P. 52.02 and 59.03 render the motion untimely?

ANALYSIS

I.

Statutory construction is a question of law that an appellate court reviews de novo. Brookfield Trade Ctr., Inc. v. County of Ramsey, 584 N.W.2d 390, 392-93 (Minn.1998). When the district court applies a statute to undisputed facts, it is a conclusion of law fully reviewable by the appellate courts. Braginsky v. State Farm Mut. Auto. Ins. Co., 624 N.W.2d 789, 792 (Minn.App.2001).

In this case, we must determine whether the two statutes at issue are irreconcilable. The collateral source statute provides in part:

In a civil action, whether based on contract or tort, when liability is admitted or is determined by the trier of fact, and when damages include an award to compensate the plaintiff for losses available to the date of the verdict by collateral sources, a party may file a motion within ten days of the date of entry of the verdict requesting determination of collateral sources.

Minn.Stat. § 548.36, subd. 2 (2000) (emphasis added). Minn.Stat. § 548.36, subd. 3(a) (2000), provides in relevant part, “The court shall reduce the award by the amounts determined under subdivision 2, * * In the no-fault act, the statute provides:

With respect to a cause of action in negligence accruing as a result of injury arising out of the operation, ownership, maintenance or use of a motor vehicle with respect to which security has been provided as required by sections 65B.41 to 65B.71, the court shall deduct from any recovery the value of basic or optional economic loss benefits paid or payable, or which would be payable but for any applicable deductible.

Minn.Stat. § 65B.51, subd. 1 (2000) (emphasis added). Section 65B.51, subdivision 1, contains no time limit within which the motion to deduct benefits must be brought. Section 548.36, in contrast, mandates that the motion be brought within ten days of entry of the verdict.

Does the ten-day limitation in the collateral source statute apply to motions brought pursuant to the no-fault act? The district court in effect said “no,” declaring the two statutes irreconcilable and applying doctrines of statutory interpretation to hold that Minn.Stat. § 65B.51 predominates. The district court concluded that although the collateral source statute was enacted in 1986, 12 years after the no-fault act was originally passed, the 1990 amendment changing a phrase of the no-fault act frota “there shall be deducted” to “the court shall deduct” rendered the no-fault act the more recent, and, therefore, the prevailing of the two statutes. See Minn. Stat. § 645.26, subd. 4 (2000) (stating that when statutes are irreconcilable, “the law latest in date of final enactment shall prevail”). The district court also concluded that because the no-fault act applies more specifically to no-fault benefits and the collateral source statute applies generally to all collateral source benefits, the no-fault act controls. See Minn.Stat. § 645.26, subd. 1 (2000) (noting that when statutes are irreconcilable, the more particular takes precedence over the more general); see also Wertish v. Salvhus, 558 N.W.2d 258, 258 (Minn.1997) (noting that the no-fault act is the more specific of the two statutes).

Mindful of the authority of the doctrines of statutory interpretation relied on by the district court, we are also aware of the caution that statutes should be construed, if possible, so that effect can be given to both. We conclude that it is possible to reconcile Minn.Stat. § 65B.51, subd. 1, and Minn.Stat. § 548.86 (2000), so as to give effect to both.

Viewing the collateral source statute as a whole convinces us that, by its terms, it is a procedural statute intended to supplement the substantive provisions of the no-fault act. “Collateral sources” are defined as including

payments related to the injury or disability in question made to the plaintiff * * * by or pursuant to * * * automobile accident insurance or liability insurance that provides health benefits or income disability coverage.

Minn.Stat. § 548.36, subd. 1(2). No-fault benefits fall within the category of automobile accident insurance, and, therefore, by definition, the collateral source statute applies to the no-fault benefits. See Minn. Stat. § 65B.49, subd. 1 (2000) (mandating that all automobile insurance policies carry no-fault coverage); Wertish v. Salvhus, 555 N.W.2d 26, 28 (Minn.App.1997) (noting that collateral source statute specifically includes automobile accident insurance as a collateral source), rev’d on other grounds mem., 558 N.W.2d 258 (Minn.1997).

We conclude that any reliance on the 1990 amendment to the no-fault act to deem it more recently passed is unpersuasive; there is no indication that the legislature intended to abrogate the meaning of the collateral source statute’s ten-day limitation merely by changing the wording of one phrase of the no-fault act (there shall be deducted) to another (the court shall deduct). Also, as noted above, while the no-fault act may be more specific with regard to substantive law, the collateral source statute is undoubtedly the more specific with regard to procedural law. Further, any attempt to interpret the “may file a motion” language of the collateral source statute to be permissive would, in fact, render the ten-day limitation meaningless. Minn.Stat. §§ 645.16 (mandating that “[e]very law shall be construed, if possible, to give effect to all its provisions”), .17(2) (2000) (mandating that courts must presume that the legislature intended to give effect to every provision of the statute).

Policy considerations motivated enactment of both the no-fault act and the collateral source statute. The no-fault act states as one of its purposes the avoidance of duplicative recovery. Minn.Stat. § 65B.42(5) (2000). Both the Minnesota Supreme Court and this court have held that the primary purpose of the collateral source statute is to prevent the plaintiff from recovering double the amount of the loss. Imlay v. City of Lake Crystal, 453 N.W.2d 326, 331 (Minn.1990); Midway Nat’l Bank v. Estate of Bollmeier, 504 N.W.2d 59, 66 (Minn.App.1993). The collateral source statute, however, has the additional goal of promoting finality in judgments by imposing upon defendants a ten-day deadline within which they must file their motions to reduce the judgment. The imposition of the ten-day deadline does not weaken the laudable goal of avoiding duplicative recovery; it merely requires filing in a timely manner.

The legislature, through the enactment of the collateral source statute, advanced both the public policy goal of avoidance of double recovery and the equally strong public policy goal of assuring the finality of judgments. Furthermore, there is merit in respondent’s argument that absent the ten-day limitation set forth in Section 548.36 — a deadline notably missing in Section 65B.51, subd. 1 — proceedings seeking recovery of collateral source benefits could be brought months and even years after judgments have been entered and damage awards have been depleted or exhausted by those having received them.

Our analysis of the reconcilability of Minn.Stat. § 65B.51, subd. 1, and Minn. Stat. § 548.36 would not be complete without examining the caselaw that informs our decision here. In Wertish, 555 N.W.2d at 26, this court reversed the district court and determined that the collateral source statute applied to motions brought pursuant to the no-fault statute. Id. at 28-29 (holding language of the collateral source statute indicates defendant has option of filing motion for collateral source determination and if defendant chooses to exercise option, he is required to do so within ten days, noting that “[a]ny other construction would make the 10-day period meaningless”). The Supreme Court reversed this court in a memorandum opinion, however, and stated:

While the general provisions of Minn. Stat. § 548.36 suggest the filing of a motion requesting a determination of collateral sources within 10 days of the date of entry of the verdict, the statute more specific to this problem, Minn.Stat. § 65B.51, subd. 1, is silent as to any time limitation, but mandates the offset.
In either event, the motion here was timely served — the trial court’s order directing the entry of judgment was filed on January 4, 1996; the 10 day period defined by Minn.Stat. § 548.36 expired on Sunday, January 14, 1996 and by operation of Minn. R. Civ. P. 6.01, performance of the act the following day, Monday, January 15, 1996, would be timely but for the fact that that day was a legal holiday, Martin Luther King, Jr. Day. The defendant’s motion was served on January 15, 1996 and received by the trial court on January 16,1996 and was timely.

Wertish, 558 N.W.2d at 258 (footnote omitted).

In a footnote to Wertish, the supreme court observed that:

Defendant filed alternative post-trial motions, including a motion for amended findings requesting an offset of collateral source, a motion sufficient to preserve the request for a determination of collateral sources. The preferred practice is to file a more specific motion pursuant to Minn.Stat. § 65B.51, subd. 1 or Minn. Stat. § 548.36.

Id.

We are not unaware that the Wertish memorandum opinion by the supreme court recognized the language of Minn. Stat. § 65B.51, subd. 1, as being more specific than that of Minn.Stat. § 548.36, and also, in a footnote, suggested that certain alternative procedures would be preferred. But the actual holding of Wertish — that the motion was timely brought under section 548.36 — did not require that the court decide whether a motion brought under section 65B.51, subdivision 1, would escape the deadline of section 548.36.

Finally, in Braginsky, this court avoided directly addressing the reconciliation of the statutes by holding that the defendant’s motion was brought pursuant to section 548.36 and was, therefore, subject to the ten-day deadline of that statute. 624 N.W.2d at 796, n. 3 (construing motion as brought pursuant to collateral source statute because defendant had failed to specify).

Because the statutory language, policy considerations, statutory interpretation tools, legislative intent, and prior caselaw all indicate that the ten-day deadline of the collateral source statute should apply to motions brought pursuant to the no-fault act, Hunt’s motion for determination of collateral source benefits was untimely.

II.

Lee argues that Hunt’s motion to amend the judgment to reflect a deduction for the no-fault benefits previously received by Lee was untimely under Minn. R. Civ. P. 52.02 and 59.03, which provide that motions to amend the judgment will not be heard later than 30 days after the entry of judgment. It is undisputed that Hunt did not bring her motion to amend judgment within 30 days of the entry of judgment. As a result, Hunt’s motion to amend the judgment was untimely.

DECISION

The ten-day time limitation set forth in Minn.Stat. § 548.36 (2000) applies to motions to deduct collateral source benefits brought under Minn.Stat. § 65B.51, subd. 1 (2000). Therefore, we reverse the district court’s grant of the motion for a determination of collateral source benefits and remand for further proceedings consistent with this opinion.

Reversed and remanded.

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

      . The Minnesota Court of Appeals has interpreted the phrase "the date of the entry of the verdict” to mean the date of the entry of judgment. Wertish v. Salvhus, 555 N.W.2d 26, 28 (Minn.App.1997), rev’d on other grounds mem., 558 N.W.2d 258 (Minn.1997).

      . A nonpublished case issued by this court in 1996 directly addressed the issue we must decide here. See Kissoondath v. Ammerman, No. C0-95-1346, 1995 WL 756840, at *5-*6 (Minn.App. Dec.26, 1995) (holding that ten-day deadline applies to motions for a reduction in a verdict brought under the no-fault act), review granted (Minn. Feb. 12, 1996) and appeal dismissed (Minn. June 19, 1996). Although Kissoondath is an unpublished opinion and, therefore, not precedential, we find its reasoning (that interpreting the no-fault act as controlling would essentially abrogate the meaning of the ten-day deadline provision in the collateral source statute) to be persuasive.

      . Arguably, language in Wertish could be read as suggesting that the collateral source statute's deadline does not apply. Wertish, 558 N.W.2d at 258. We believe, however, that the Wertish language is best construed as dicta, and trust that the public policy and statutory construction considerations set forth here would be consistent with the analysis by the supreme court were it to address this issue squarely on its merits.