author:
SHUMAKER, Judge.
      HARTEN, Judge

text:
    Mary Ann KARELS, Appellant, v. STATE FARM INSURANCE COMPANY, Respondent.
    No. C5-00-371.
    Court of Appeals of Minnesota.
    Sept. 19, 2000.

      Lisa Montpetit Brabbit, McCoy, Peterson, Jorstad & Brabbit, Ltd., Minneapolis, MN; and Wilbur W. Fluegel, Fluegel Law Office, Minneapolis, MN (for appellant).
    Thomas C. Atmore, Leonard, O’Brien, Wilford, Spencer & Gale, Ltd., St. Paul, MN (for respondent).
    Considered and decided by SHUMAKER, Presiding Judge, RANDALL, Judge and HARTEN, Judge.
   OPINION

SHUMAKER, Judge.

Appellant Mary Ann Karels filed for no-fault arbitration when respondent State Farm Insurance Company declined to pay $2,582.01 in outstanding medical bills. One day before the arbitration hearing, Karels filed an arbitration brochure claiming additional medical expenses and wage-loss benefits of approximately $35,500 that had accrued after the filing of the petition.

The arbitrator awarded her the entire amount. State Farm moved to vacate the award, arguing that the arbitrator lacked jurisdiction to hear the case because the claim exceeded the $10,000 jurisdictional limit and the arbitrator exceeded his authority in interpreting the No-Fault Insurance Act. The district court vacated the award. Karels appealed.

FACTS

Appellant Mary Ann Karels sustained a neck injury on August 1, 1995, when her car was hit from behind by a truck. Respondent State Farm Insurance Company, Karels’ no-fault insurer, paid medical benefits as they accrued.

In August, 1996, an orthopedic surgeon diagnosed Karels as having discogenic disease secondary to the vehicle accident. In November, 1996, the surgeon told Karels that if conservative treatment did not alleviate her neck symptoms she would have to have surgery costing as much as $50,-000.

State Farm had Karels examined by a neurologist in July, 1997. The neurologist stated that Karels’ neck symptoms were related to the vehicle accident but that she did not need treatment beyond nonprescription medicine and home traction and exercise. Upon that information, State Farm discontinued Karels’ no-fault benefits, effective August 29,1997.

Karels filed a petition for no-fault arbitration on October 21, 1998, claiming that State Farm owed $2,582.01 in medical benefits. She also indicated that her claim was “ongoing.” She had incurred no other unpaid medical expenses or wage loss as of that time. An arbitration hearing was scheduled for March 80,1999.

After filing her arbitration petition, Ka-rels had medical examinations and diagnostic procedures, and she underwent a cervical discectomy and fusion on November 9,1998.

Karels did not notify State Farm of the surgery until March 29, 1999, the day before the arbitration hearing, when she submitted an arbitration brochure listing claims for medical treatments, surgery, and wage loss totaling $38,610.92.

State Farm objected to the arbitration on the ground that Karels “timed the filing of her petition so as to avoid the jurisdictional limits imposed by the No-Fault Statute.” The arbitrator denied the objection, ruled that he had jurisdiction over the entire claim, and ruled that “[sjuffieient time, including a continuance, was given to [State Farm] to respond to the disputed amount of medical bills.” The arbitrator then awarded Karels $38,610.92.

State Farm moved in district court to vacate or modify the award, alleging that Karels had improperly circumvented the no-fault jurisdictional limits and that the arbitrator had exceeded his authority. The district court vacated the award, holding that the arbitrator exceeded his authority by impermissibly interpreting the law and hearing a “new claim” beyond the no-fault jurisdictional limit.

Although the district court held that State Farm was denied due process by Karels, who gained an “unfair advantage” by adding claims the day before the arbitration hearing, the court found that Ka-rels did not intentionally time her petition so as to escape the no-fault jurisdictional limit. Karels challenges the district court’s holding on appeal.

ISSUES

1. When a no-fault arbitrator applies the plain language of statutes and caselaw to facts before him, does he exceed the scope of his authority by impermissibly interpreting the law?

2. A no-fault claimant files a petition for arbitration of a claim within the arbitrator’s jurisdictional limit. Later, additional arbitrable claims accrue and, taken together, exceed the jurisdictional limit. Does the arbitrator have the authority to arbitrate the total claim?

ANALYSIS

A claim for no-fault insurance benefits must be submitted to binding arbitration “where the claim at the commencement of arbitration is in an amount of $10,000 or less * * * .” Minn.Stat. § 65B.525, subd. 1 (1998). “Arbitration is commenced by the filing of the signed” petition form and the payment of the required filing fee. Minn. Stat. Ann. § 65B.525, Rule 5(c) (1998).

In cases where the amount of the claim continues to accrue after the petition is filed, the arbitrator shall have jurisdiction to determine all amounts claimed including those in excess of $10,000.

Minn.Stat. Ann. § 65B.525, Rule 6 (1998).

No-fault “arbitrators are limited to deciding issues of fact, leaving the interpretation of the law to the courts.” Johnson v. American Family Mut Ins. Co., 426 N.W.2d 419, 421 (Minn.1988). An arbitrator’s findings of fact are final. Barneson v. Western Natl. Mut Ins. Co., 486 N.W.2d 176, 177 (Minn.App.1992). But the courts must vacate an award if the arbitrator exceeded his authority. Minn. Stat. § 572.19, subd. 1(3) (1998). Statutory construction is a question of law that the appellate courts review de novo on appeal. Hibbing Educ. Ass’n v. Public Employment Relations Bd., 369 N.W.2d 527, 529 (Minn.1985). An appellate court is not bound by and need not give deference to the district court’s decision on a question of law. Frost-Benco Elec. Ass’n v. Minnesota Pub. Utils. Comm’n, 358 N.W.2d 639, 642 (Minn.1984).

Karels’ arbitration petition set forth a claim for outstanding medical expenses. Her arbitration brochure contained claims for those expenses plus additional medical expenses and wage loss that had accrued after she filed her petition.

The district court ruled that the term “claim” in section 65B.525, subd. 1, is ambiguous because it is unclear whether it applies to “the substantive nature of the claim and/or the dollar amount of the claim.” The court held that the arbitrator had to resolve the ambiguity by interpreting the law, a function that exceeded his authority.

We do not agree that the law is ambiguous or that the arbitrator engaged in an impermissible legal interpretation. Subject to statutory and contractual limitations, the no-fault law allows claims for medical expenses and wage loss benefits. Minn.Stat. § 65B.44, subds. 1, 2, 3 (1998). In Brown v. Allstate Ins. Co., 481 N.W.2d 17, 19 (Minn.1992), the supreme court held that “the term ‘claim’ as used in section 65B.525, subd. 1, is simply referring to the amount that the claimant is asking for.” Claims of $10,000 or less at the time of the filing of the petition for arbitration are required to be arbitrated. Minn.Stat. § 65B.525, subd. 1. From the plain language of Brown and the no-fault statute, the arbitrator knew what “claim” meant, what types of expenses and losses qualified for no-fault benefits, and what claims were required to be arbitrated. There was nothing for the arbitrator to “interpret.” His task was to apply the clear law to the facts. He did so.

Neither did the arbitrator have to interpret the law regarding the medical, and wage loss claims that accrued after Karels filed her petition. The supreme court previously settled the issue of continuing jurisdiction:

[T]he arbitrator retains jurisdiction over claims where the jurisdictional amount is exceeded by further expenses or losses accruing after the petition is filed. The statute requires only that the jurisdictional amount not be exceeded at the time the arbitration petition is filed. This is what we think the statute plainly says, and the legislative history supports this reading.

Charboneau v. American Family Ins. Co., 481 N.W.2d 19, 22 (Minn.1992).

In ruling that he had jurisdiction over the increased claim, the arbitrator was applying the clear law. Having been required merely to apply, and not to interpret, plain, settled law, the arbitrator did not exceed his authority.

The district court found that Ka-rels did not intentionally try to circumvent the jurisdictional limits of arbitration by filing her petition when she did. Nevertheless, the court ruled that Karels gained an unfair advantage and denied State Farm due process by adding a new claim and substantially increasing the amount of the claim one day before the arbitration hearing. Characterizing Karels’ action as an unfair manipulation of the no-fault system, State Farm argues that Hippe v. American Family Ins. Co., 565 N.W.2d 439 (Minn.App. 1997), supports the district court’s conclusion. We disagree.

In Hippe, the claimant had an accident. 565 N.W.2d at 440. Her insurer paid medical and wage-loss benefits. Id. At one point, the insurer denied Hippe’s request for further medical benefits. Id. After the denial, Hippe requested wage-loss disability benefits. Id. at 441. The insurer said it would evaluate the claim. Id. While the insurer was evaluating the wage-loss claim, Hippe filed a petition for arbitration on the previously denied medical benefits. Id. After Hippe filed her petition, the insurer denied her wage-loss disability claim. Id. At the arbitration hearing, Hippe sought both medical and wage-loss benefits. Id. Hippe’s medical claim was under $10,000 when she filed her petition. Id. The addition of the wage-loss claim caused the total to exceed $10,000. Id. The insurer argued that the claims exceeded the arbitrator’s jurisdictional limit. Id. But the arbitrator ruled that the wage-loss claim had not accrued by the time Hippe filed her petition, and, thus, he had jurisdiction. Id.

On appeal, this court held that Hippe had engaged in the prohibited practice of splitting her claims. Id. at 442. When she filed her petition for arbitration, Hippe’s medical and wage-loss claims had both accrued, even though the insurer had not yet denied the wage-loss claim. Id. Because both claims had accrued, it was not proper for Hippe to split them, file only one so as to obtain arbitration jurisdiction, and then add the other for the hearing:

We conclude that the total amount of damages a claimant seeks from an insurer for medical and wage loss benefits must not exceed the jurisdictional limit at the time of filing the petition, regardless of whether all losses have yet been denied payment by the insurer. Because Hippe’s claim exceeded the jurisdictional limit at the time of filing, we conclude that the arbitrator exceeded his powers in hearing this case.

Id. at 442. (Emphasis added.)

Here, the only expense in existence at the time Karels filed her petition was the medical expense of $2,582.01. The additional medical charges and the wage-loss claim did not accrue until after she filed her petition. See Minn.Stat. § 65B.54, subd. 1 (1998) (“Loss accrues not when injury occurs, but as income loss * * * or medical * * * expense is incurred.”). Ka-rels did not run afoul of the proscription against claim splitting noted in Hippe because she presented the only expense in existence at the time she filed her petition for arbitration. The later-accrued claims properly fell within the arbitrator’s continuing jurisdiction.

The district court was also concerned that State Farm did not have reasonable notice and an adequate opportunity to prepare to meet the increased claim. The arbitration began on March 30, 1999, and was closed April 19, 1999. The arbitrator noted that State Farm was given a continuance to prepare to dispute Karels’ medical bills. Nothing in the record contradicts that indication, and it appears that State Farm did not request additional time to prepare to meet the increased claim.

The district court raised the constitutional issue sua sponte, and issued a briefing schedule for the parties. Because the district court did not rule on the issue, and post-trial motions did not relate to the issue, we will not address the issue here. See Novack v. Northwest Airlines, Inc., 525 N.W.2d 592, 596 (Minn.App.1995) (“Generally on appeal from a judgment where no motion for a new trial was made, ‘the only questions for review are whether the evidence sustains the findings of fact and whether such findings sustain the conclusions of law and judgment.’ ”) (quoting Gruenhagen v. Larson, 310 Minn. 454, 458, 246 N.W.2d 565, 569 (1976)).

DECISION

The no-fault arbitrator did not engage in impermissible interpretation of the law by applying clear and settled statutes and caselaw to the facts in ascertaining his authority to arbitrate.

The arbitrator did not exceed his authority by retaining jurisdiction over claims exceeding the jurisdictional limit when the only claim existing when the arbitration petition was filed was within that limit.

Reversed.

HARTEN, Judge

(concurring specially)

Given the problematic finding of fact that Karels did not intentionally try to circumvent the jurisdictional limits of arbitration, I concur in the result.

      . In Great West Cas. Co. v. State Farm Mut. Auto. Ins. Co., 590 N.W.2d 675, 677 n. 1 (Minn.App.1999), we noted that "arbitrators must, as a practical matter, interpret the no-fault statutes to give a context to their factual determinations.” In a broad sense, then, an “interpretation” occurs each time an arbitrator determines that a particular statutory provision applies to specific facts. We do not intend that the usage of the term "interpret” here be read as contradicting Great West Cas. Co.


source: Caselaw Access Project

author: G. BARRY ANDERSON, Judge

license: Public Domain

text:
    Timothy M. SMITH, Appellant, v. SOO LINE RAILROAD COMPANY, d/b/a CP Rail System, Respondent.
    No. C7-00-338.
    Court of Appeals of Minnesota.
    Sept. 19, 2000.
    Review Denied Nov. 21, 2000.

      Michael F. Tello, Patrick R. Gillespie, Tello & Associates, Anoka, for appellant.
    Julius William Gernes, Scott Howard Rauser, Spence, Ricke, Sweeney & Gernes, St. Paul, for respondent.
    Considered and decided by SHUMAKER, Presiding Judge, ANDERSON, Judge, and FOLEY, Judge.

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

   OPINION

G. BARRY ANDERSON, Judge

Appellant railroad worker, allegedly injured while carrying a five-gallon water bottle up the stairs of his work building, sought relief under 45 U.S.C. § 51 (1994), the Federal Employer’s Liability Act (FELA). The district court granted respondent railroad summary judgment based on lack of actual or constructive notice that employees were carrying bottles. Because appellant has shown that his employer and agent saw bottles stored on a building’s first floor and knew they were used by third-floor employees who had no elevator to transport them, appellant has supplied the “scintilla” of evidence necessary to prove constructive notice and survive summary judgment under FELA. Accordingly, we reverse.

FACTS

In response to ongoing water quality problems at its St. Paul rail yard, respondent, Soo Line Railroad Company, contracted with an agent to deliver bottled water to the third floor of the yard’s retarder tower. Eight years later, the agent stopped delivering most of the five-gallon bottles to the third floor, and instead began leaving nearly all of the bottles on the retarder tower’s first floor. The retarder tower was not accessible to the public, and no one reported any problems or raised any safety concerns about transporting the bottled water from the first to the third floor.

Appellant Timothy M. Smith worked on the third floor of the retarder tower. One morning in July 1998 appellant found the water dispenser empty. Appellant took the empty bottle downstairs, lifted a full bottle to his shoulder, and felt a snap in his back while climbing the stairs. Appellant did not feel any pain and continued with his work. Over the next several days, however, he experienced worsening back pain and ultimately underwent surgery.

Appellant’s supervisor observed some full, five-gallon, bottles of water on the first floor of the retarder tower, but never saw employees carrying water bottles nor received any complaints concerning water delivery to the tower’s third floor. Similarly, the manager of yard operations did not know employees were carrying water to the top of the retarder tower; he did not receive any complaints either. It was his understanding that the agent was delivering the water to the retarder tower’s third floor as arranged.

Appellant’s complaint alleged, among other things, that respondent negligently caused his injury in violation of the Federal Employers Liability Act, 45 U.S.C. § 51 (1994) (FELA). Respondent denied the allegations and, following several months of discovery, moved for summary judgment. The district court granted respondent’s motion on the basis that respondent did not have actual or constructive notice that employees were carrying the bottled water from the retarder tower’s first floor to the third floor.

ISSUE

Did the district court err by granting summary judgment on the ground that, as a matter of law under FELA, respondent railroad did not have actual or constructive notice that employees were carrying water bottles?

ANALYSIS

Appellant argues that the district court erred by granting respondent summary judgment on the basis that respondent lacked actual or constructive notice that employees were manually carrying bottled water up the retarder tower stairs.

Summary judgment is properly granted if the

pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that either party is entitled to judgment as a matter of law.

Minn. R. Civ. P. 56.03. On appeal from a summary judgment, we determine whether there are triable issues of material fact and whether the court erred as a matter of law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990). We view the evidence in the light most favorable to the party against whom the motion was granted. Rathbun v. W.T. Grant Co., 300 Minn. 223, 230, 219 N.W.2d 641, 646 (1974).

Under the Federal Employer’s Liability Act, 45 U.S.C. § 51 (1994) (FELA), a railroad has a duty to provide its employees with a reasonably safe workplace. Ackley v. Chicago & N.W. Transp. Co., 820 F.2d 263, 266-67 (8th Cir.1987). A railroad breaches its duty to provide a safe workplace when it knows or should know of a potential hazard in the workplace, yet fails to exercise reasonable care to inform or protect its employees. Gallose v. Long Island R. Co., 878 F.2d 80, 84-85 (2nd Cir.1989). The railroad’s duty extends to negligent acts of third-party agents engaged in the operational activities of the railroad. Nivens v. St. Louis S.W. Rwy. Co., 425 F.2d 114, 119 (5th Cir.1970). It is the actual or constructive knowledge of a hazardous condition that gives rise to the railroad’s duty. Gallose, 878 F.2d at 85.

To prove negligence, a FELA plaintiff must offer evidence proving the common law elements of negligence. Fulk v. Illinois Cent. R.R. Co., 22 F.3d 120, 124 (7th Cir.1994). But a plaintiffs burden of proof to present a case to the jury is significantly lighter under FELA than it would be in an ordinary negligence case. Habrin v. Burlington Northern Ry. Co., 921 F.2d 129, 132 (7th Cir.1990) (providing examples of FELA actions submitted to the jury based only on “evidence scarcely more substantial than pigeon bone broth”). The Minnesota Supreme Court observed that FELA requires only a “scintilla” of evidence to establish negligence. Hauser v. Chicago, Milwaukee, St. Paul & Pac. R. Co. 346 N.W.2d 650, 653 (Minn.1984).

Appellant contends that he presented sufficient evidence that respondent knew or should have known that employees were carrying water to the third floor of the retarder tower. Appellant supports his argument with: (1) a co-worker’s statement that “[t]here have been complaints of no water, or of having to supply it yourself,” (2) a supervisor’s testimony that he saw the large water bottles stored on the first floor of the retarder tower; and (3) appellant’s own testimony that the agent stopped delivering all of the bottles to the third floor nine months before his alleged injury.

The district court determined that appellant failed to show that respondent had actual or constructive notice of a dangerous condition. We disagree. Respondent knew there were no elevators or similar lifts in the tower, that the tower lacked potable drinking water, and the only way to transport the large bottles of drinking water to the tower’s third floor was to carry it. Both appellant’s supervisor and respondent’s water delivery agent knew the bottles stored on the tower’s first floor were used on the third floor. Accordingly, respondent should have known, through the exercise of due care, that employees might have undertaken the task of carrying the large water bottles to the third floor of the retarder tower.

While appellant’s evidence on the issue of notice is minimal and, to say the least, less than overpowering, given that we are required to view appellant’s evidence in light of the extremely low burden of proof standard applicable to FELA litigation, we conclude that appellant has supplied the “scintilla” of evidence necessary to survive summary judgment. Because the district court erred by concluding that respondent lacked actual or constructive notice of employees carrying bottled water, we reverse the district court’s grant of summary judgment to respondent.

DECISION

A FELA plaintiff need only present a scintilla of evidence tending to show negligence to survive summary judgment. A FELA plaintiff who shows that the railroad and an agent of the railroad knew employees used bottled water on a building’s third floor and saw the bottles stored on the first floor meets the very low burden of proving the railroad had constructive notice of employees carrying water.

Reversed.

      . We note that although Hauser involved review of a directed verdict, not summary judgment, a FELA plaintiffs burden of proof remains the same in both procedural contexts. See Williams v. National R.R. Passenger Corp., 161 F.3d 1059, 1061 (7th Cir.1998) (reciting, in a summary judgment context, the low evi-dentiary burden of a FELA plaintiff).


author: KLAPHAKE, Judge

text:
    STATE of Minnesota, Respondent, v. Tijuan Donte JOHNSON, Appellant.
    No. C3-00-207.
    Court of Appeals of Minnesota.
    Sept. 19, 2000.

      Mike Hatch, Attorney General, St. Paul, MN; and Walter M. Kaminsky, Sherburne County Attorney, Thomas C. McNinch, Assistant County Attorney, Elk River, MN (for respondent).
    John D. Ellenbeeker, St. Cloud, MN (for appellant).
    Considered and decided by LANSING, Presiding Judge, KLAPHAKE, Judge, and PETERSON, Judge.
   OPINION

KLAPHAKE, Judge

Appellant Tijuan Donte Johnson was convicted of first-degree criminal sexual conduct and second-degree assault following a bench trial on stipulated facts, pursuant to State v. Lothenbach, 296 N.W.2d 854, 857 (Minn.1980). Prior to trial, appellant had moved for specific enforcement of a plea agreement from which the state had withdrawn prior to entry of a guilty plea. On appeal, he argues that the trial court erred in denying his motion to enforce the plea agreement and requests that he be allowed to plead guilty and be sentenced in accordance with the plea agreement. We affirm.

FACTS

In June 1998, appellant was arrested after he sexually and physically assaulted a young woman and physically assaulted the woman’s boyfriend in their St. Cloud apartment. The complaint charged appellant with two counts of first-degree criminal sexual conduct, two counts of second-degree assault, two counts of aggravated first-degree robbery, two counts of kidnapping, one count of first-degree burglary, and two counts of terroristic threats.

In August 1999, defense counsel and the prosecutor, an assistant county attorney, met with the trial judge in chambers. The parties reached a tentative agreement in which appellant would plead guilty to one count of first-degree criminal sexual conduct and one count of second-degree assault and would be consecutively sentenced to 86 and 21 months, respectively, for a total of. 107 months. The remaining counts were to be dismissed. According to defense counsel, the prosecutor received approval of the agreement from the county attorney and then communicated to defense counsel that “it was an official offer on the table.” Defense counsel discussed the offer with appellant and communicated appellant’s acceptance to the prosecutor in late August.

The parties were unable to schedule a hearing to enter the plea, however, because the trial judge was unavailable due to a death in his family. Appellant contends that the trial court endorsed the terms of the agreement at the August in-chambers meeting. In early October 1999, the prosecutor informed defense counsel that he had changed his mind and that the offer was being withdrawn.

Appellant moved to enforce the agreement. At a hearing on thé motion, the assistant county attorney explained his reasons for withdrawing the offer:

[A]t some point I realized that there exists other evidence in the case that to me máde the case more potentially winnable from the State’s position. I would agree it’s not evidence that didn’t exist before, it is evidence that I had not noticed in some of the police reports. And I think it is' very strong evidence in one case, one particular piece of evidence that I had not noticed. And that went into my decision to want to withdraw from this agreement as well.
I no longer thought 107 months was reasonable under the circumstances.

The trial court denied appellant’s motion on the record, concluding that the parties were free to withdraw from the agreement any time before appellant appeared in court and the agreement was placed on the record and until the court had accepted the agreement. The trial court also concluded that appellant had shown no prejudice as a result of the state’s withdrawal from the agreement.

The matter proceeded to trial on one count of first-degree criminal sexual conduct and one count of second-degree assault; the remaining counts were dismissed by the state. The court found appellant guilty of both charges and sentenced him to consecutive sentences of 172 and 36 months, for a total of 208 months. As reasons for its upward departure from the sentencing guidelines, the court cited the following aggravating factors: (1) the female victim was treated with particular cruelty; (2) a gun was involved and used to threaten both victims; (3) the assault took place over a period of time in the victims’ apartment; and (4) a theft was involved.

On appeal, appellant argues that the withdrawn plea agreement is specifically enforceable.

ISSUE _

Did the trial court err in refusing to enforce a plea agreement from which the state withdrew before a plea of guilty was entered by appellant or accepted by the trial court?

ANALYSIS

Issues involving the interpretation and enforcement of a plea agreement are issues of law that are reviewed de novo. State v. Brown, 606 N.W.2d 670, 674 (Minn.2000). “What the parties agreed to,” however, “involves an issue of fact to be resolved by the [trial] court.” Id.

The trial court here refused to enforce the plea agreement because appellant had not yet entered his guilty plea when the state withdrew from the agreement. Under normal circumstances, once the parties reach a plea agreement, the trial court must “accept or reject the plea of guilty on the term of the plea agreement.” Minn. R.Crim. P. 15.04, subd. 3(1). Once a defendant enters a plea and the court accepts the plea, due process requires the court to honor the plea. Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 498-99, 30 L.Ed.2d 427 (1971). The in-chambers meeting in which the trial judge indicated a willingness to accept the plea agreement does not constitute acceptance of the plea under the criminal rules. See Minn. R.Crim. P. 15.02 (requiring questioning of defendant and explanation of plea “in open court” prior to acceptance by court).

Appellant argues, however, that his failure to enter a plea should not be a controlling factor because he was prevented from entering his plea by circumstances beyond his control — unavailability of the trial judge due to a death in the family. Appellant admits that there are no Minnesota cases directly on point. He does, however, cite a Maryland case in which the court bound the state to a plea agreement from which it had withdrawn after the plea hearing was rescheduled due to a time conflict involving the defense attorney. See Kisamore v. State, 286 Md. 654, 409 A.2d 719, 724 (1980) (holding that it was “not fair and equitable” to preclude defendant from pleading guilty).

Kisamore was decided prior to the Supreme Court’s decision in Mabry v. Johnson, 467 U.S. 504, 507-08, 104 S.Ct. 2543, 2546, 81 L.Ed.2d 437 (1984), which held that a “plea bargain, standing alone, is without constitutional significance” and is merely “executory” until a court accepts a guilty plea. Since Mabry, many courts have ruled that the state may withdraw from a plea agreement before a defendant pleads guilty, provided that the defendant has not detrimentally relied on the offer. See, e.g., State v. Crockett, 110 Nev. 838, 877 P.2d 1077, 1079-80 (1994); Reed v. Becka, 333 S.C. 676, 511 S.E.2d 396, 402-04 (Ct.App.1999).

Accordingly, we hold that the state may withdraw from a plea agreement at any time before a defendant enters a guilty plea and the trial court accepts the plea, unless the defendant has detrimentally relied upon the agreement. Our holding is entirely consistent with State v. Robledo-Kinney, 615 N.W.2d 25 (Minn.2000). In that decision, the supreme court affirmed a district court’s denial of a defendant’s request for specific performance of a plea agreement withdrawn by the state prior to entry of a plea, where the parties were under a mutual mistake of fact at the time the plea agreement was offered and where the defendant did not rely on the plea agreement to his detriment. Id. at 30.

Here, the assistant county attorney withdrew his offer after a more thorough evaluation of the evidence, which revealed a stronger likelihood of a conviction. At that point, appellant was entirely free to go to trial or to renegotiate a new plea agreement. Cf. Watkins v. Commonwealth, 25 Va.App. 646, 491 S.E.2d 755, 757-58 (1997) (enforcement of plea agreement not compelled absent some performance by defendant, because defendant’s right to trial by jury remains sufficient remedy to government’s withdrawal from agreement). While appellant may argue that the prosecutor acted unfairly in offering a plea agreement and then withdrawing it, that argument is largely irrelevant to the issue of whether appellant should now be allowed to vacate his convictions and plead guilty according to the terms of the proposed plea agreement. Cf. Mabry, 467 U.S. at 511, 104 S.Ct. at 2548 (question whether prosecutor “was negligent or otherwise culpable in first making and then withdrawing his offer” not relevant, when defendant was “fully aware of the likely consequences when he pleaded guilty”).

Appellant does not claim that he relied on the offer to his detriment, nor does he claim that he was prejudiced by the state’s withdrawal of the offer. Because the offer was withdrawn before a guilty plea was entered by appellant or accepted by the trial court, the agreement was still execu-tory and dependent upon entry of appellant’s guilty plea.

DECISION

We affirm the trial court’s denial of appellant’s motion for specific enforcement of the plea agreement.

Affirmed.


author: WILLIS, Judge

text:
    James J. ENGVALL, Plaintiff, v. SOO LINE RAILROAD COMPANY, d/b/a Canadian Pacific Railway Company, defendant and third-party plaintiff, petitioner, Appellant, v. General Motors Corporation, a foreign corporation, third-party defendant, Respondent.
    No. C6-99-64.
    Court of Appeals of Minnesota.
    Sept. 26, 2000.

      Eric J. Magnuson, Jeffrey R. Schmidt, Peter Gray, Rider, Bennett, Egan & Arun-del, LLP, Minneapolis, MN (for appellant)
    David M. Heilbron, pro hac vice, Robert A. Brundage, McCutchen, Doyle, Brown & Enersen, LLP, Three Embarcadero Center, San Francisco, CA, Mickey W. Greene, Lezlie Ott Marek, Hanson, Marek, Bolk-com & Greene, Ltd., Minneapolis, MN, and Thomas J. Sweeney, Mark E. Gebauer, Eckert, Seamens, Cherin & Mellott, LLC, Pittsburgh, PA, for respondent.
    Glenn Olander-Quamme, Spence, Ricke, Sweeney & Gernes, P.A., St. Paul, MN, and Louis P. Warchot, Daniel Saphire, Association of American Railroads Law Department, Washington, D.C., for amicus curiae Association of American Railroads.
    Considered and decided by WILLIS, Presiding Judge, LANSING, Judge, and FOLEY, Judge.

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

   OPINION

WILLIS, Judge

Plaintiff sued his employer, appellant Soo Line Railroad Company, for injuries plaintiff suffered in applying a handbrake on a locomotive. Soo Line filed a third-party complaint against respondent General Motors Corporation, the manufacturer of the locomotive, seeking contribution and indemnity. The district court granted General Motors’ motion for summary judgment, concluding that Soo Line’s claims were preempted by the federal Locomotive Inspection Act. This court dismissed Soo Line’s appeal as untimely. The supreme court granted review, reversed, and remanded for consideration on the merits. We affirm.

FACTS

Plaintiff James J. Engvall (Engvall) suffered a back injury on November 6, 1996, while, within the scope of his employment as a locomotive engineer for appellant Soo Line Railroad Company (Soo Line), he was applying, or “tying down,” a handbrake on a locomotive. He brought suit against Soo Line under the Federal Employers’ Liability Act (the FELA), 45 U.S.C. §§ 51-60 (1997), and the Locomotive Inspection Act (the LIA), formerly known as the Boiler Inspection Act, 49 U.S.C. §§ 20701-20703 (1997). Engvall’s complaint alleged that Soo Line’s negligence, including its failure to inspect and maintain its equipment and its failure to instruct its employees in the proper use of the equipment, was the cause of his injury.

Soo Line filed a third-party complaint against respondent General Motors Corporation (GM), the designer and manufacturer of the locomotive, alleging that GM failed to use reasonable care in designing and manufacturing the handbrake, thereby rendering it defective and unreasonably dangerous. Soo Line also asserted claims for contribution and indemnity. Soo Line later filed a proposed amended third-party complaint, alleging that GM had violated the LIA.

In its amended answer to the third-party complaint, GM raised the affirmative defense that federal law, including, but not limited to, the LIA and the Safety Appliance Act (the SAA), 49 U.S.C. §§ 20301-20306 (1997), preempted Soo Line’s claims for contribution and indemnity. GM moved for summary judgment on the ground of preemption on Soo Line’s contribution and indemnity claims. The district court granted GM’s motion for summary judgment, concluding that (1) Soo Line’s state common-law “product liability” claims against GM were preempted by the LIA, (2) Soo Line had no claims against GM under the LIA or the SAA because GM was not a proper FELA defendant, and (3) there was no private right of action under either the LIA or the SAA. The district court stated that Soo Line’s motion for partial summary judgment on the issues of contribution and indemnity and its motion to amend its third-party complaint to allege these causes of action were therefore rendered moot. Two months later, Engvall and Soo Line entered into a settlement that preserved Soo Line’s contribution and indemnity claims, and final judgment was entered.

Soo Line appealed the district court’s dismissal of its claims against GM. This court characterized the dismissal as one for lack of subject-matter jurisdiction, which is immediately appealable, and, by order, dismissed Soo Line’s appeal as untimely. Soo Line R.R. v. General Motors Corp., No. C6-99-64 (Minn.App. Mar. 16, 1999). The supreme court granted review and reversed this court’s decision, remanding Soo Line’s appeal for consideration on the merits. Engvall v. Soo Line R.R., 605 N.W.2d 738 (Minn.2000).

ISSUE

Does the federal Locomotive Inspection Act preempt state common-law claims for contribution or indemnity asserted by a railroad carrier against a locomotive manufacturer?

ANALYSIS

On appeal from summary judgment , we consider whether there are any genuine issues of material fact and whether the district court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990). In making this determination, we view the evidence in the light most favorable to the party against whom summary judgment was granted. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn.1993).

Soo Line asserts that the equitable remedies of contribution and indemnity are not preempted by federal law and are available to railroad carriers that have incurred liability under the FELA due to the fault of third-party locomotive manufacturers. We disagree.

“The preemptive effect of a statute involves a question of law, which this court reviews de novo.” In re Speed Limit for Union Pac. R.R., 610 N.W.2d 677, 682 (Minn.App.2000) (citation omitted). Federal law may preempt state law when (1) a statute contains an express preemption clause, (2) preemption can be inferred from extensive federal involvement in a regulated field, or (3) state law conflicts with federal law. Pikop v. Burlington Northern, R.R., 390 N.W.2d 743, 748 (Minn.1986). “If Congress evidences an intent to occupy a given field, any state law falling within that field is preempted.” Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 248, 104 S.Ct. 615, 621, 78 L.Ed.2d 443 (1984) (citations omitted).

For more than a century, railroads have been subject to comprehensive federal regulation to advance safety and assure national uniformity of regulation. United Transp. Union v. Long Island R.R., 455 U.S. 678, 687, 102 S.Ct. 1349, 1355, 71 L.Ed.2d 547 (1982). To cover all aspects of locomotive safety, Congress enacted the Boiler Inspection Act, now known as the Locomotive Inspection Act (the LIA), 49 U.S.C. § 20701 (1997), placing on carriers the absolute duty to maintain locomotives in a safe condition and conferring on the Secretary of Transportation exclusive authority to regulate “the design, the construction, and the material of every part of the locomotive and tender and of all appurtenances.” Napier v. Atlantic Coast Line R.R., 272 U.S. 605, 611, 47 S.Ct. 207, 209, 71 L.Ed. 432 (1926). Because the LIA was intended to occupy the field, “requirements by the states are precluded, however commendable or however different their purpose.” Id. at 613, 47 S.Ct. at 210.

The FELA provides that railroad carriers are responsible for compensating their employees who are injured as a result of employer negligence. 45 U.S.C. § 51 (1997). Although the LIA imposes on railroad carriers the duty to provide their employees with safe equipment, the statute does not create a private right of action for injured employees. See Urie v. Thompson, 337 U.S. 163, 188, 69 S.Ct. 1018, 1033-34, 93 L.Ed. 1282 (1949); accord 49 U.S.C. §§ 20301-06 (1997) (the SAA). But because the United States Supreme Court has construed the LIA as an amendment to the FELA, proof of an LIA violation is sufficient to prove negligence as a matter of law under the FELA. Urie, 337 U.S. at 189, 69 S.Ct. at 1034.

Soo Line does not dispute that the FELA provides railroad employees with their exclusive remedy for damages for railroad-related injuries, but it argues that, notwithstanding the nondelegable duty imposed on the railroad employer, nothing in the act itself prevents the railroad from seeking contribution or indemnity where state law permits and another party bears some responsibility for the employee’s injuries. But contribution requires common liability, which does not exist unless the injured party could bring a direct action against each of the tortfeasors. Nelson v. Larsen, 405 N.W.2d 455, 458 (Minn.App.1987). Here, no liability can attach to GM under the FELA because only railroad carriers, not locomotive manufacturers, are proper FELA defendants.

Soo Line argues that indemnity does not require common liability but arises “where the one seeking indemnity has incurred liability because of a breach of duty owed to him by the one sought to be charged” or “where the one seeking indemnity has only a derivative or vicarious liability for damages caused by the one sought to be charged.” See Tolbert v. Gerber Indus., Inc., 255 N.W.2d 362, 366 (Minn.1977) (citation omitted). Soo Line does not identify any specific FRA regulation violated by GM’s handbrake design. Under Minnesota law, a manufacturer’s compliance with FRA standards qualifies a locomotive as “safe to operate” as a matter of law. See Mahutga v. Minneapolis, St. Paul & Sault Ste. Marie Ry., 182 Minn. 362, 366, 234 N.W. 474, 476 (1931).

Granting Soo Line’s equitable claim for contribution or indemnity would require a determination of liability or breach of duty based on defects in designing and constructing locomotives. But under the LIA, regulation of the field of locomotive design and construction has been exclusively delegated to the FRA. Accordingly, any liability or breach of duty would necessarily be premised on additional state law requirements, which are precluded by federal law. See Napier, 272 U.S. at 613, 47 S.Ct. at 210; see also Law v. General Motors Corp., 114 F.3d 908, 911-12 (9th Cir.1997) (stating that imposing tort liability on railroad-equipment manufacturers would force them to conform to design and construction standards imposed by states). Because the LIA was intended to occupy the field, we conclude that the LIA preempts state common-law claims for contribution or indemnity based on design and construction asserted by a railroad carrier against a locomotive manufacturer.

DECISION

Because the LIA preempts Soo Line’s equitable claims for contribution or indemnity, the district court did not err in granting GM summary judgment.

Affirmed.

      . Soo Line argues that because the district court confined its analysis to (1) the allegations in Engvall’s complaint, (2) Soo Line's original complaint and proposed amended third-party complaint, and (3) GM’s answer to the third-party complaint, this court should construe the district court’s order as a dismissal for failure to state a claim on which relief can be granted and review the court's decision under that standard. We disagree. Contrary to Soo Line’s assertion, the district court’s order states that it is “[biased on all of the files, records, proceedings and arguments of counsel held herein." Where matters outside the pleadings are presented to and not excluded by the district court, we review the court’s decision under a summary-judgment standard. Carlson v. Lilyerd, 449 N.W.2d 185, 187 (Minn.App.1989), review denied (Minn. Mar. 8, 1990); see also Minn. R. Civ. P. 12.02(e) (stating that motion to dismiss for failure to state a claim is converted to summary-judgment motion if court considers matters outside pleadings). Therefore, Soo Line’s argument that this court’s standard of review should be that applicable to rule 12.02(e) motions fails.

      . Originally the Interstate Commerce Commission regulated locomotives. In 1966, Congress transferred this authority to the Secretary of Transportation. Pub.L. No. 89-670, § 6(e)(1), 80 Stat. 931, 1,110-11. The Federal Railroad Administration (FRA) now exercises this power. 49 C.F.R. § 1.49(c)(5), (g) (1998).


text:
    In the Matter of Dennis HALVERSON on behalf of Evelyn HALVERSON, petitioner, Respondent, v. Stuart TAFLIN, Respondent Below, Suzanne Chute, f/k/a Suzanne Halverson, Appellant.
    No. C1-00-514.
    Court of Appeals of Minnesota.
    Oct. 3, 2000.

      Frederick R. Weddel, Bemidji, for respondent.
    Michael R. Ruffenach, Bemidji, for appellant.
    Considered and decided by KALITOWSKI, Presiding Judge, SHUMAKER, Judge, and ANDERSON, Judge.
   OPINION

G. BARRY ANDERSON, Judge

Appellant seeks reversal of the district court’s order denying her motion to intervene in concluded domestic abuse proceedings. Respondent, appellant’s former husband, sought an order for protection on behalf of their child, alleging abuse by appellant’s boyfriend. Appellant, the child’s joint legal and sole physical custodian, was not made a party to the domestic abuse proceedings. The district court’s order for protection granted respondent temporary custody for one year and later denied appellant’s motion to intervene as untimely. Because the district court erred by denying appellant’s intervention motion, we reverse and remand.

FACTS

Appellant Suzanne Chute and respondent Dennis Halverson dissolved their twelve-year marriage in May 1998. The parties have a daughter, Evelyn Halver-son, now age nine. The dissolution court awarded the parties joint legal custody and granted appellant physical custody. Respondent received generous visitation rights. On November 17, 1999, respondent requested an ex parte order for protection against Stuart Taflin, appellant’s live-in boyfriend, on behalf of daughter Evelyn. Respondent alleged that Taflin had threatened to kill Evelyn and appellant. Both respondent, represented by counsel, and Taflin, appearing pro se, attended a November 24, 1999, hearing. The district court found Taflin had abused Evelyn and issued a non-ex parte temporary order for protection. Among other things, the order, filed November 29, 1999, transferred both legal and physical custody of Evelyn to respondent for one year.

By motion filed December 23, 1999, appellant sought, among other things, to vacate the order’s custody provisions. The motion captioned appellant as “Interve-nor.” The district' court treated the motion as one for intervention of right and, by order dated March 1, 2000 and incorporated memorandum, denied appellant’s motion as untimely under Minnesota Rule of Civil Procedure 24.01. Appellant challenges the district court’s denial of her motion.

ISSUE

Did the district court err by denying appellant’s motion for intervention of right?

ANALYSIS

Appellant argues that the district court erred by denying her motion to intervene. Where intervention is sought as a matter of right, we conduct an independent review of the district court’s order. Weiler v. Lutz, 501 N.W.2d 667, 670 (Minn.App.1993), aff'd sub nom. Valentine v. Lutz, 512 N.W.2d 868 (Minn.1994). To successfully intervene as a matter of right under rule 24.01, a party must show (1) an interest relating to the property or transaction that is the subject of the action; (2) as a practical matter, disposition of the action may impair or impede the party’s ability to protect that interest; (3) the party is not adequately represented by the existing parties; and (4) the motion was timely. Minn. R. Civ. P. 24.01.

Appellant clearly has a fundamental interest in her child. See In re Welfare of H.G.B., 306 N.W.2d 821, 825 (Minn.1981) (recognizing the longstanding fundamental right of parents to their child’s companionship). A disposition such as the change of custody here, however temporary, infringes on that interest. Neither respondent, as appellant’s former spouse, nor Stuart Tallin, as a party without any rights or legally protected interests with respect to the child, could adequately protect appellant’s parental interest. The district court observed that appellant “should have been a party because of her parental interest,” but held that appellant’s motion to intervene was untimely. The district court explained that, “it is doubtful that ‘timely’ [within the meaning of rule 24] includes a date nearly a month after an order has been entered.”

“Timeliness” of an application to intervene is determined on a case-by-case basis and depends on factors such as (1) how far the subject suit has progressed; (2) the reason for delay in seeking intervention; and (3) any prejudice to existing parties because of the delay. Blue Cross/Blue Shield v. Flam by Strauss, 509 N.W.2d 393, 396 (Minn.App.1993), review denied (Minn. Feb. 24, 1994). Courts favor intervention and rules concerning intervention of right are to be liberally applied, but posttrial intervention is not viewed favorably because of the potential prejudice to the original parties. See id. This court has deemed intervention untimely if the prejudice to the original parties will be substantial. Omegon, Inc. v. City of Minnetonka, 346 N.W.2d 684, 687 (Minn.App.1984).

Applying the timeliness test to the unique circumstances in this case favors intervention. That appellant filed her motion after the protection order issued ordinarily weighs against intervention. Appellant, however, explained by affidavit that she did not seek to intervene before the protection hearing because legal aid attorneys assured her that the district court could not change Evelyn’s custody without appellant’s participation. After the order for protection issued, appellant retained private counsel who apparently misread the filing procedures for motions to intervene as set forth in Minn. R. Civ. P. 24.03. Appellant’s reliance on the advice of counsel is, under these circumstances, understandable, and we do not believe the subsequent attorney’s mistake so great as to be fatal to the timeliness of her motion. See McClellan v. Goldberg, 568 N.W.2d 860, 863 (Minn.App.1997) (explaining this court’s historical “reluctance to see clients suffer as a result of counsel’s neglect”).

Moreover, it does not appear that the existing parties would have been “substantially” prejudiced if' appellant had been joined as a party, even after the order for protection issued. The entire protection hearing generated only two full'pages of transcript. The order for protection is not complicated and revisiting the custody issue would not involve the undoing of intricate custody transfers or commercial transactions. Cf. Tischendorf v. Tischendorf 321 N.W.2d 405, 409 (1982) (intervention motion untimely where brought only a few days prior to child’s scheduled departure for Germany); Omegon, 346 N.W.2d at 687 (finding prejudice where one party relied on a city’s issuance of a conditional use permit pursuant to court’s order). Accordingly, we hold that, under the unique and compelling circumstances present in this case, appellant’s motion to intervene was timely and ought to have been granted.

Respondent contends that the Domestic Abuse Act, Minn.Stat. § 518B.01 (1998), cannot accommodate third parties such as appellant. The Domestic Abuse Act governs orders for protection, but does not provide for third-party intervention. Id. Intervention in family law cases has, historically, been governed by Minn. R. Civ. P. 24. See, e.g., Tischendorf, 321 N.W.2d at 409 (applying rule in child custody dispute).

Appellate courts have, however, placed some limitations on the use of rules of civil procedure in child custody matters and domestic abuse cases. In Valentine v. Lutz, the supreme court held that foster parents seeking to intervene in a custody case could not do so by virtue of rule 24 because the “very personal and family interests” of foster parents were not the “interests relating to the * * * property or transaction[s]” contemplated by rule 24. 512 N.W.2d 868, 870 (Minn.1994); see also Van Meveren v. Van Meveren, 603 N.W.2d 671, 673 (Minn.App.1999) (denying sister rule 24 intervention right in brother’s custody case). In Whalen ex rel. Whalen v. Whalen, we recognized that district courts have broad equitable powers to act quickly in emergency- domestic abuse situations, and need not strictly adhere to statutory procedures. 594 N.W.2d 277, 280-281 (Minn.App.1999) (declining to add civil notice procedures to those already provided in the Domestic Abuse Act); see also Baker v. Baker, 494 N.W.2d 282, 287 (Minn.1992) (“The requirements of due process are flexible and call for such procedural protections as the particular situation demands.”).

Those limitations do not preclude us from applying rule 24 in this case. The failure to grant a parent an opportunity to be heard on custody issues is a denial of equal protection and due process. Stanley v. Illinois, 405 U.S. 645, 657-58, 92 S.Ct. 1208, 1215-16, 31 L.Ed.2d 551 (1972). Even a temporary order for protection may deprive a parent of a liberty interest in his or her child. Baker, 494 N.W.2d at 287-88. For this reason, the Domestic Abuse Act, which specifically provides for ex parte orders for protection in emergency situations, includes “extensive procedural protections” that guard against erroneous deprivation of a parent’s rights. Id. One of the significant procedural protections is the limited duration of an ex parte order for protection. See Minn.Stat. § 518B.01, subd. 7(c), (d) (providing that, where a party requests a hearing, an ex parte order remains in effect for only 7 to 10 days, until modified or vacated).

In this case, the district court’s order does not refer to any emergency. The order is not ex parte, and consequently, is not of a brief duration. Instead, the order is effective for one year and may be renewed if Evelyn reasonably continues to fear physical harm from Tallin. See Minn. Stat. § 518B.01, subd. 6a (permitting court to extend relief granted in existing order for protection if statutory criteria are met). Unlike the ex parte emergency circumstances in which the parent’s due process interests “must yield to considerations of the child’s welfare,” Baker, 494 N.W.2d at 287, the district court did not find any emergency circumstances in this case that warrant denying appellant her due process right to participate in protection proceedings that acutely affect her parental interest.

Nor do we see any procedural impediment to applying Minn. R. Civ. P. 24.01 in this case. Unlike the civil notice requirements that Whalen determined were inapplicable because the Domestic Abuse Act provided for its own notice procedures, the Domestic Abuse Act does not contain any intervention provisions that conflict with Minn. R. Civ. P. 24.01. Indeed, the Domestic Abuse Act contemplates that custody determinations will involve both parents. See, e.g., Minn.Stat. § 518B.01, subd. 6(a)(4) (1998) (permitting the court to award temporary custody “with regard to minor children of the parties,” considering the safety of the children) (emphasis added). Because allowing parental intervention protects fundamental due process rights and complements the Domestic Abuse Act’s custody provisions, we determine that Minn. R. Civ. P. 24.01 is the proper rule for district courts to use when a parent seeks to intervene in domestic abuse proceedings that are not ex parte actions.

We conclude that the district court erred by denying appellant’s motion to intervene. Although the district court’s decision to award respondent custody of Evelyn may well have been within its broad discretion, absent an immediate and present danger of abuse necessitating an ex parte order, due process compelled appellant’s inclusion in the action to protect her fundamental parental rights. Accordingly, we reverse and remand to allow the district court to reconsider the order for protection in light of appellant’s arguments and evidence.

DECISION

A custodial parent not made party to non-ex parte proceedings commenced under the Domestic Abuse Act by the other parent on behalf of the parents’ child may intervene if the parent meets the criteria of Minn. R. Civ. P. 24.01.

Reversed and remanded.

      . In reversing the district court on the issue of intervention under these unique facts we do not reach the merits of the substantive issue nor do we minimize in any way the district court’s proper concern for the well-being and safety of the minor child. Those issues can be more adequately addressed with a better record.


author: SHUMAKER, Judge

text:
    STATE of Minnesota, CITY OF MAPLE GROVE, Appellant, v. David Gary HORNER, Robin Cheryl Horner, Respondents.
    Nos. CX-00-592, C1-00-593.
    Court of Appeals of Minnesota.
    Oct. 10, 2000.

      Steven M. Tallen, Tallen and Baertsehi, Minneapolis, MN (for appellant)
    David K. Ross, Carson, Clelland & Schreder, Brooklyn Center, MN (for respondents)
    Heard and considered by SHUMAKER, Presiding Judge, ANDERSON Judge, and PARKER, Judge.

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

   OPINION

SHUMAKER, Judge

In this appeal, the City of Maple Grove argues that the district court applied the wrong statute in determining that respondents were entitled to the expungement of their criminal records after they completed a diversion program. Because the district court correctly applied the applicable statute, we affirm.

FACTS

Robin Horner gave Maple Grove police officers permission to search her home, where David Horner also resided. The officers found 944.8 grams of marijuana, and the Hennepin County Attorney filed charges against the Horners, alleging felony possession and sale of a controlled substance.

When the Horners appeared in district court, they and the county prosecutor agreed that the case would be processed through the “Drug Court Diversion Program.” The Horners did not plead to the charge. Rather, the state suspended prosecution for one year and three months on the condition that the Horners abide by certain requirements. One requirement was that the Horners “may not request expungement of the record until three years from the date of offense.”

The Horners satisfied all diversion requirements, and, when three years from the offense date had passed, they moved to expunge all records relating to the charge. Maple Grove objected to the expungement of its police records.

The district court overruled Maple Grove’s objection and granted the Hor-ners’ motion, ruling that it had statutory and inherent authority to do so and that the diversion agreement was a contract that the state was obligated to honor. Maple Grove appeals.

ISSUES

As a condition of the expungement of a criminal record, proceedings must have been determined in the petitioner’s favor. Does the completion of a diversion program without a plea of guilty and the dismissal of all charges constitute a determination in the petitioner’s favor?

ANALYSIS

The district court held that it had authority under Minn.Stat. § 609A.02 (1998), among other grounds, to grant the ex-pungement motion. Maple Grove contends that the court misread section 609A.02 and that the applicable statute, Minn.Stat. § 299C.11 (1998), prohibits ex-pungement on these facts.

The application of a statute to undisputed facts raises a question of law that we review de novo. Oslund v. Johnson, 578 N.W.2d 353, 356 (Minn.1998). Furthermore, we are not bound by the district court’s rulings on questions of law. Hammer v. Investors Life Ins. Co., 511 N.W.2d 6, 8 (Minn.1994).

Minnesota’s law regarding the expungement of criminal records is found in chapter 609A. Under that chapter, “expungement” means that criminal records are retained and sealed, and may not be opened or disclosed without court order; they are not destroyed or returned to the petitioner. Minn.Stat. § 609A.01.

When a petition for expungement is authorized by Minn.Stat. § 609A.02, subd. 3, chapter 609A is the source of both the grounds and the procedures for expungement under Minn.Stat. § 299C.11 and other laws. Id.

Minn.Stat. § 609A.02, subd. 3, authorizes a petition for expungement if (1) the records are not subject to section 299C.ll(b), and (2) all actions and proceedings were resolved in the petitioner’s favor.

Minn.Stat. § 299C.11 governs criminal identification data furnished by local law enforcement agencies to the state bureau of criminal apprehension. Minn.Stat. § 299C.ll(a). Section 299C.ll(b) governs the circumstances under which no chapter 609A petition is required and records are actually returned to the arrested person on demand.

One of the requirements that must be met under section 299C. 11(b) for the actual return of records on demand is that the proceedings were determined in the arrested person’s favor. Minn.Stat. § 299C.ll(e)(2) provides:

For purposes 'of this section, “determination of all pending criminal actions or proceedings in favor of the arrested person” does not include: * * * (2) the arrested person’s successful completion of a diversion program * * *.

Maple Grove contends that Minn. Stat. § 2990.11(b) controls here and that § 2990.11(e)(2) expressly prohibits ex-pungement. We disagree.

The Horners do not claim that they are entitled to forgo chapter 609A proceedings and to obtain the actual return of their records on demand. Rather, they are seeking only a 609A expungement. Minn. Stat. § 2990.11(b) does not apply to them. See State v. Bragg, 577 N.W.2d 516, 521 (Minn.App.1998) (noting that the grounds for sealing records under section 609A.02, subd. 3, are distinct from the grounds for returning records under section 2990.11(b)). Thus, they have met the first requirement of section 609A.02, subd. 3.

The second requirement is that the proceedings were resolved in the petitioners’ favor. The Horners never pleaded guilty. They completed all diversion requirements and the state dismissed all charges against them. For purposes of Minn.Stat. § 609A.02, subd. 3, the proceedings were resolved in their favor. See State v. L.K., 359 N.W.2d 305-08 (Minn.App.1984) (finding that where defendant did not plead or admit guilt and the charge was not prosecuted, innocence was presumed and the court’s dismissal of the charges “constitutes a determination in his favor.”).

DECISION

Completion of a diversion program without a plea of guilty fails to qualify as a determination in an arrested person’s favor only if the person’s effort to clear his criminal record is subject to Minn.Stat. § 299C.ll(b). That is not the case here. The district court did not err in ordering the expungement of the Horners’ records under chapter 609A.

Affirmed.

      . City of St. Paul v. Froysland, 310 Minn. 268, 272-76, 246 N.W.2d 435, 437-39 (1976), interpreting a prior statute, Minn.Stat. § 299C.11, reasoned that "in favor of” does not encompass a situation in which the petitioner pleaded guilty and the state later dismissed the charges. Here, the Horners never entered a plea of any sort.


author: MARING, Justice.

text:
    2000 ND 174
    In the Interest of E.T. Patrick B. Goodman, M.D., Petitioner and Appellee, v. E.T., Respondent and Appellant.
    No. 20000248.
    Supreme Court of North Dakota.
    Oct. 3, 2000.
    Gregory I. Runge, Bismarck, for respondent and appellant.
    Brian D. Grosinger, Assistant State’s Attorney, Mandan, for petitioner and ap-pellee.
   MARING, Justice.

[¶ 1] E.T. appeals an involuntary medication order, authorizing hospital physicians to treat E.T. with a feeding tube for the purpose of providing her with nourishment. We conclude this appeal is moot and dismiss.

[¶ 2] On August 4, 2000, a petition was filed for the involuntary commitment of E.T. due to her alleged mental illness. On August 8, 2000, the trial court ordered E.T. hospitalized and treated. On August 10, 2000, the State filed a motion for an order to treat E.T. with medication. Following a hearing on the matter, the trial court issued its order permitting involuntary treatment with medication on August 14, 2000. Neither of these two orders are the subject of this appeal.

[¶ 3] On August 28, 2000, the State filed a second motion for an order to treat E.T. with medication. The motion was made under N.D.C.C. § 25-03.1-18.1. The request was to involuntarily tube feed E.T. with a nutritional supplement, known as Jevity Plus. Upon conclusion of the evidence at the hearing on August 31, 2000, the trial court granted the State’s motion for involuntary medication.

[¶ 4] On September 11, 2000, the State filed a motion with this Court to dismiss the case. In its motion, the State indicated that E.T. had been released from the hospital and that due to recent improvements in E.T.’s health, a feeding tube was no longer necessary. E.T. filed a response to the State’s motion to dismiss, arguing the case should not be dismissed because the issue presented “is capable of repetition, yet evading review.”

[¶ 5] We have long held that this Court will not render advisory opinions. See Nord v. Herman, 1998 ND 91, ¶ 12, 577 N.W.2d 782. An appeal will be dismissed if the issues become moot or academic such that no actual controversy is left to be determined. See Ashley Education Ass’n v. Ashley Public School District, 556 N.W.2d 666, 668 (N.D.1996). The principle purpose behind the prohibition of advisory opinions is that “there must be an ‘actual controversy to be determined’ before a court can properly adjudicate.” Bies v. Obregon, 1997 ND 18, ¶ 9, 558 N.W.2d 855 (citation omitted). An actual controversy no longer exists when the issue has been rendered moot by a lapse of time, or the occurrence of related events which make it impossible for a court to grant effective relief. See Nord, 1998 ND 91, ¶ 12, 577 N.W.2d 782. However, issues characterized as moot will nonetheless be heard by this Court if the controversy is capable of repetition, yet evading review, or if the controversy is one of great public interest and involves the power and authority of public officials. Id.

[¶ 6] The issue E.T. has raised on appeal is moot. As indicated by the State and conceded by E.T.’s counsel at oral argument, E.T. has been released from the hospital and is no longer being fed by a feeding tube. Therefore, this Court is unable to provide any meaningful relief by deciding whether or not the involuntary medication order was appropriate under N.D.C.C. § 25-03.1-18.1.

[¶ 7] Although the issue presented is one which is capable of repetition, it can be reviewed at such time. We have stated that the fact that a issue may arise in the future “does not empower us to render a purely advisory opinion.” Gosbee v. Bendish, 512 N.W.2d 450, 454 (N.D.1994). Furthermore, the issue presented here is not one to be likely repeated without a meaningful opportunity for judicial review. See Ashley Education Ass’n, 556 N.W.2d at 668. If the trial court subjects E.T. to involuntary medication in the future, she will not be prevented from appealing such an order.

[¶ 8] E.T. never argued that the issue presented was of great public interest. We have stated that “public interest” means

“‘More than mere curiosity; it means something in which the public, the community at large, has some pecuniary interest, or some interest by which their legal rights or liabilities are affected. It does not mean anything so narrow as the interest of the particular localities which may be affected by the matter in question.’ ”

Gosbee, 512 N.W.2d at 453 (citations omitted). Certainly the appropriate treatment for mentally ill persons is of great public concern. See State v. Nording, 485 N.W.2d 781, 786 (N.D.1992) (stating the purpose of N.D.C.C. ch. 25-03,1, is to ensure that mentally ill persons, who present a serious risk of harm to themselves or others, obtain appropriate treatment .and at the same time, to protect their due process rights). However, at oral argument counsel for E.T., acknowledged the State could have obtained the same result by use of a different statute. Thus, because the State could have arguably obtained the same order under an alternative statute, we find no compelling reason to determine whether it could have done so under N.D.C.C. § 25-03.1-18.1.

[¶ 9] We conclude this appeal has been rendered moot, and the issue is not likely to be repeated without adequate opportunity for judicial review. Furthermore, the issue is not of such important public interest to justify.our consideration of a moot issue. Accordingly, the appeal is dismissed.

[¶ 10] GERALD W. VANDE WALLE, C.J., CAROL RONNING KAPSNER, DALE V. SANDSTROM, WILLIAM A. NEUMANN, JJ., concur.

      . North Dakota Century Code § 25-03.1-18.1(l)(a), requires "the treating psychiatrist and another licensed physician or psychiatrist not involved in the current diagnosis or treatment of the patient” to certify:
      (1)That the proposed prescribed medication is clinically appropriate and necessary to effectively treat the patient and there is a reasonable expectation that if the person is not treated as proposed there exists a serious risk of harm to that person, other persons, or property;
      (2) That the patient was offered that treatment and refused it or that the patient lacks the capacity to make or communicate a responsible decision about that treatment;
      (3) That the prescribed medication is the least restrictive form of intervention necessary to meet the treatment needs of the patient; and
      (4) That the benefits of the treatment outweigh the known risks to the patient.


author: SANDSTROM, Justice.

text:
    2000 ND 177
    STATE of North Dakota, Plaintiff and Appellee, v. Blaine Douglas ELLIS, Defendant and Appellant.
    No. 20000006.
    Supreme Court of North Dakota.
    Oct. 3, 2000.

      Lori S. Mickelson (argued) and Wade L. Webb (appeared), Assistant State’s Attorneys, Fargo, for plaintiff and appellee.
    Brian W. Nelson and Mark T. Blumer (argued) of Nelson, Blumer & Johnson, PLLP, Fargo, for defendant and appellant.
   SANDSTROM, Justice.

[¶ 1] Blaine Douglas Ellis appeals his conviction of reckless endangerment. Concluding the district court did not abuse its discretion by denying a change of venue, or wrongly refuse to transcribe the questioning of prospective jurors, we affirm the conviction.

I

[¶ 2] Ellis was convicted by a jury of reckless endangerment, a class C felony, for driving an automobile into David Erickson. Prior to trial, Ellis moved for change of venue. Ellis alleged substantial pre-trial publicity due to an unrelated attempted murder charge against him. After a hearing, the district court denied the motion, and the case proceeded to trial.

[¶ 3] A jury found Ellis guilty as charged. The district court denied Ellis’ motion for a new trial. Ellis appeals, alleging he requested transcription of the voir dire and the district court denied the request, and arguing the district court abused its discretion in denying the change of venue and violated his due process rights by refusing to transcribe voir dire.

[¶ 4] The district court had jurisdiction under N.D.C.C. § 27-05-06. This Court has jurisdiction under N.D. Const, art. VI, § 6, and N.D.C.C. § 29-28-06.

II

[¶ 5] Ellis claims the district court erred in failing to transcribe the voir dire examination of the jury panel. We recently ruled on a similar assertion of error in failing to transcribe voir dire. State v. Entzi, 2000 ND 148, 615 N.W.2d 145. In Entzi, the defendant claimed he was entitled to a new trial because voir dire was not conducted on the record and a transcript of jury selection was unavailable. Id. at ¶ 3. We stated:

We have specifically addressed nonevi-dentiary proceedings, and have held one must request recording. Fenske v. Fenske, 542 N.W.2d 98 (N.D.1996) (holding failure to record closing arguments was not reversible error when the complaining party did not request recording or object to the lack of recording); State v. Kunkel, 366 N.W.2d 799 (N.D.1985) (stating parties who want events recorded must request the court reporter to record them); State v. Rougemont, 340 N.W.2d 47 (N.D.1983) (holding failure to record voir dire and arguments of counsel is not per se reversible error).

Id. at ¶ 6 (footnote omitted). We concluded that failure to transcribe voir dire did not entitle the defendant to a new trial. Id. at ¶ 8.

[¶ 6] The record does not establish Ellis’ claim that the district court denied, his alleged request for transcription of voir dire. The district court’s order denying Ellis’ motion for new trial states:

The defendant did not request on the record that voir dire be recorded. The Court noted nothing unusual during the voir dire process. The defendant did not object at any time during the voir dire process. The defendant was given ample opportunity to question jurors. A number of jurors were excused for cause. The defendant also passed for cause.

[¶ 7] Ellis’ only support for his assertion of reversible error is his claim that defense counsel had in fact requested the voir dire be transcribed. Ellis’ counsel concedes that any request for transcription was not made on the record.

[¶ 8] The facts of this case are similar to those of Entzi. In Entzi, the defendant did not request transcription. Id. at ¶ 5. The Entzi trial court stated, “Whether jury selection would be recorded was not referred to or discussed in any way by either party or the court.” Id. Here the district court stated, “The defendant did not request on the record that voir dire be recorded.” Because Ellis failed to make a request on the record for transcription of voir dire, he is not entitled to a new trial based on allegations the voir dire was not recorded.

Ill

[¶ 9] Ellis argues the district court abused its discretion in denying his motion for a change of venue.

[¶ 10] A motion for change of venue is within the sound discretion of the trial court and will not be reversed on appeal absent a showing of abuse of discretion. State v. Norman, 507 N.W.2d 522, 526 (N.D.1993) (citing State v. Purdy, 491 N.W.2d 402 (N.D.1992)). “While there are some cases in which prejudice to the defendant is so clear that a change of venue should be ordered promptly, generally voir dire examination is an appropriate occasion to determine whether it is possible to select a fair and impartial jury.” Id. (citing State v. Leidholm, 334 N.W.2d 811 (N.D.1983)).

[¶ 11] A defendant has the burden of showing “a reasonable likelihood of prejudice so pervasive that a fair and impartial jury could not be found.” State v. Austin, 520 N.W.2d 564, 566 (N.D.1994) (citing State v. Engel, 289 N.W.2d 204, 207 (N.D.1980); Rule 21, N.D.R.Crim.P., Explanatory Note). “The ultimate question for the court to decide is whether it is impossible to select a fair and impartial jury.” Id.

[¶ 12] We have identified eight factors to evaluate selection of a fair and impartial jury:

(1) whether the publicity was recent, widespread, and highly damaging to the defendant; (2) whether the prosecution was responsible for dissemination of the objectionable material; (3) the extent of inconvenience to the prosecution; (4) whether a substantially better panel could be sworn elsewhere; (5) the nature and gravity of the offense; (6) the size of the community; (7) the defendant’s status in the community; and (8) the popularity and prominence of the victim.

Austin, 520 N.W.2d at 566 (citing Purdy, 491 N.W.2d at 406-07 (citations omitted)); see also Olson v. North Dakota District Court, 271 N.W.2d 574, 580 (N.D.1978); Rule 21, N.D.R.Crim.P., Explanatory Note.

[¶ 13] The district court, in considering Ellis’ motion for a new trial, concluded the defendant failed to meet the burden necessary to change venue as announced in Austin, 520 N.W.2d 564.

[¶ 14] The district court’s findings on the motion for change of venue were:

There is no information relating to any pretrial publicity as to this particular case. There’s no allegation that the state was responsible for any dissemination of any objectionable material. There would be additional expense to the county and to the prosecution moving the case. Cass County is the largest county in the state and the jury pool is the largest. It’s not alleged that the Defendant or the victim have prominent status in the community. Considering those and the other factors in State vs. Austin, the Court makes the determination that the Motion for Change of Yen-ue is not meritorious and the Defendant’s motion is denied.

The district court made specific findings under Austin. Because there is no record of the voir dire, we decline to presume a fair and impartial jury was not empaneled. Further, counsel for Ellis conceded at oral argument that a request for change of venue was not renewed following voir dire. Generally, a change of venue is inappropriate before voir dire examination, and a defendant believing, based on comments by members of the jury panel during the voir dire, that an impartial jury cannot be or has not been selected must renew a motion of change of venue at that time. See Norman, 507 N.W.2d at 526; Leidholm, 334 N.W.2d at 822.

[¶ 15] The post-trial findings of the district court reflect Ellis failed to meet his burden under Austin. Because of these specific findings, and without a record, we will not presume a fair and impartial jury was not empaneled. We therefore conclude the district court did not abuse its discretion in denying Ellis’ motion for change of venue.

IV

[¶ 16] The criminal judgment and commitment of the district court is affirmed.

[¶ 17] GERALD W. VANDE WALLE, C.J., WILLIAM A. NEUMANN, MARY MUEHLEN MARING, CAROL RONNING KAPSNER, JJ„ concur.


author: NEUMANN, Justice.

text:
    2000 ND 175
    Cassandra Leigh ROTT, Petitioner and Appellee, v. NORTH DAKOTA DEPARTMENT OF TRANSPORTATION, Respondent and Appellant.
    No. 20000112.
    Supreme Court of North Dakota.
    Oct. 3, 2000.

      Andrew Moraghan, Assistant Attorney General, Bismarck, for respondent and appellant.
    Lawrence P. Kropp of Kropp Law Offices, Jamestown, for petitioner and appel-lee.
   NEUMANN, Justice.

[¶ 1] The North Dakota Department of Transportation appeals from the district court’s judgment reversing the department’s decision to cancel Cassandra Rott’s driver’s license. We reverse.

[¶ 2] On September 17, 1997, Cassandra Rott, then fourteen years of age, received a class D North Dakota driver’s license. Effective August 1, 1999, the North Dakota Legislative Assembly enacted N.D.C.C. § 39-06-01.1, providing for the cancellation of a minor’s driver’s license or permit upon an accumulation of a point total in excess of five points. On October 14, 1999, while still a minor, Rott committed a traffic offense resulting in six points assessed against her driving record.

[¶ 3] On November 1, 1999, the department issued an order notifying Rott of its intent to cancel her driver’s license based on an offense triggering N.D.C.C. § 39-06-01.1. Rott requested an administrative hearing.

[¶ 4] At the hearing, Rott conceded she was a minor convicted of a traffic offense resulting in assessment of six points against her driving record. Rott argued that applying N.D.C.C. § 39-06-01.1 to her was an unconstitutional ex post facto application and violated her due process right to proper notice. The hearing officer recommended the department cancel Rott’s driver’s license based on a point total in excess of five points. On December 1,1999, the department issued its final decision canceling Rott’s driver’s license.

[¶ 5] Rott appealed the department’s decision to the district court. The district court reversed the license cancellation. The department appeals.

[¶ 6] The Administrative Agencies Practice Act, N.D.C.C. ch. 28-32, governs the review of an administrative decision to suspend or revoke a driver’s license. Morrell v. North Dakota Dept. of Transp., 1999 ND 140, ¶ 6, 598 N.W.2d 111. When reviewing a driver’s license suspension or revocation, we review the agency’s decision. Id. at ¶ 6. We affirm the agency’s decision unless:

1) a preponderance of the evidence does not support the agency’s findings; 2) the agency’s findings of fact do not support its conclusions of law and its decision; 3) the agency’s decision violates the constitutional rights of the appellant; 4) the agency did not comply with the Administrative Agencies Practice Act in its proceedings; 5) the agency’s rules or procedures have not afforded the appellant a fair hearing; or 6) the agency’s decision is not in accordance with the law.

Id. at ¶ 6.

The canceling language of N.D.C.C. § 39-06-01.1 provides:

1. The director shall cancel the permit or license to operate a motor vehicle of an individual who has committed acts resulting in an accumulated point total in excess of five points as provided for a violation under section 39-06.1-10 or has committed an alcohol-related offense while operating a motor vehicle, if:
a. The acts or offenses were committed while the individual was a minor; and
b. The individual admitted the violation, was found to have committed the violation by the official having jurisdiction, or pled guilty to, was found guilty of, or adjudicated to have committed the offense.

The department argues it appropriately canceled Rott’s driver’s license under N.D.C.C. § 39-06-01.1. The parties agree the facts in this case satisfy the elements of N.D.C.C. § 39-06-01.1. Rott was a minor convicted of a traffic offense resulting in six points being assessed against her driving record. Rott’s argument to the district court and on appeal is that the statute, as applied to her, is unconstitutional because it is retroactive and an ex post facto punishment and because it violates her due process rights.

[¶ 7] The department asserts Rott’s ex post facto challenge should fail because the department did not apply N.D.C.C. § 39-06-01.1 retroactively. A statute is applied retroactively if it operates on transactions that have already occurred, or on rights existing before its enactment. Glaspie v. Little, 1997 ND 108, ¶ 5, 564 N.W.2d 651. According to the department, because the effective date of the statute was August 1, 1999, and the traffic offense occurred on October 14, 1999, the application of the statute is not retroactive.

[¶ 8] Rott argues that because she held a class D driver’s license nearly two years before the effective date of N.D.C.C. § 39-06-01.1, and because N.D.C.C. § 39-06-01.1 affected her right to her driver’s license by changing her driver’s license status, the statute was applied retroactively.

[¶ 9] In Reiling v. Bhattacharyya, 276 N.W.2d 237, 239 (N.D.1979), this Court explained retroactivity as follows:

A statute is applied retroactively when it is applied to a cause of action that arose prior to the effective date of the statute. A statute is applied prospectively when it is applied to a cause of action that arose subsequent to the effective date of the statute.

Applying that rationale, in State v. Haverluk, 432 N.W.2d 871, 873-74 (N.D.1988), this Court held a statute providing increased penalties for repeat DUI offenders was not applied retroactively merely because the prior offense occurred before the effective date of the statute, when the current offense occurred after that date.

[¶ 10] Here, N.D.C.C. § 39-06-01.1 became effective August 1, 1999. Rott’s license cancellation resulted from an offense on October 14, 1999. Consistent with our holding in Haverluk, N.D.C.C. § 39-06-01.1 was not applied retroactively to Rott. The offense triggering the cancellation of Rott’s license occurred subsequent to the effective date of the statute. Accordingly, Rott’s ex post facto argument is without merit.

[¶ 11] Rott also argues the enactment of N.D.C.C. § 39-06-01.1 changed the status of her driver’s license, affecting her, property interest in her driver’s license. Because she was not notified of the status change, Rott contends her due process rights were violated.

[¶ 12] The mere enactment of N.D.C.C. § 39-06-01.1 did not change the status of Rott’s license. Rott held a class D driver’s license before and after the August 1, 1999, effective date of N.D.C.C. § 39-06-01.1. Rather, the enactment of N.D.C.C. § 39-06-01.1 changed the consequence of Rott’s subsequent traffic conviction. Accordingly, Rott was not entitled to notice of the enactment of N.D.C.C. § 39-06-01.1.

[¶ 13] The district court’s judgment reversing the department’s decision to cancel Rott’s driver’s license is reversed.

[¶ 14] GERALD W. VANDE WALLE, C.J., MARY MUEHLEN MARING, CAROL RONNING KAPSNER, DALE Y. SANDSTROM, JJ., concur.