author: MAHAN, P.J.

text:
    Kimberly WURPTS, Plaintiff-Appellant, v. IOWA DISTRICT COURT FOR SIOUX COUNTY, Defendant-Appellee.
    No. 03-0970.
    Court of Appeals of Iowa.
    May 26, 2004.

      Timothy J. Kramer of Waagmeester Law Office, P.L.C., Rock Rapids, for appellant.
    Dan W. Pluim of Rensink, Pluim & Vo-gel, Orange City, for appellee.
    Heard by MAHAN, P.J., and ZIMMER and EISENHAUER, JJ.
   MAHAN, P.J.

I. Background Facts & Proceedings

Kimberly Wurpts and Justin Kelly are the parents of Kiana, born in May 1996. Kimberly and Justin have never been married. Justin has a lengthy criminal history and has had periods of incarceration.

In 1999 Justin’s parents, Paul and Sally Kelly, filed a petition seeking grandparent visitation. On November 1, 1999, the district court entered a decree pursuant to Iowa Code section 598.35(6) (1999), granting the grandparents extensive visitation with Kiana. On October 18, 2001, Kimberly was found to be in contempt for failing to provide visitation to the grandparents on some dates. She was ordered to serve seven days in jail, but was allowed to purge herself by “making the child available for weekend visitation and future visitations pursuant to the Decree.... ”

In the meantime, Justin filed a petition seeking joint custody of Kiana and visitation with the child. Kimberly filed a petition seeking termination of Justin’s parental rights. She also sought to modify the grandparent visitation order by eliminating such visitation. These three actions were consolidated.

On February 7, 2002, the district court determined that while Kimberly had established sufficient grounds to terminate Justin’s parental rights due to his failure to pay child support, termination was not in Kiana’s best interests because of the established relationship between Justin and Kiana. Because of a history of domestic abuse between the parents, the court determined Kimberly should have sole custody. The court set forth a specific visitation schedule for Justin, which included alternating weekends, some holidays, and two two-week periods in the summer. In regard to grandparent visitation, the court ruled:

Kimberly’s petition to modify Paul and Sally Kelly’s grandparent visitation rights is granted. Paul and Sally Kelly’s grandparent visitation rights are now combined with Justin Kelly’s visitation rights. Paul and Sally Kelly are entitled to exercise Justin’s visitation rights when Justin is unable to do so, provided in any calendar year Paul and Sally Kelly’s visitation shall not exceed 25 percent of the total visitation granted Justin.

On January 6, 2003, Paul, Sally, and Justin filed applications for rule to show cause claiming Kimberly was in contempt for failure to permit them to exercise visitation on some occasions. They did not differentiate between visitation which was granted the grandparents and that granted to Justin. Kimberly responded that while she had denied visitation at times, she later permitted make-up visitation.

The district court determined the evidence showed beyond a reasonable doubt that Kimberly had denied visitation to the grandparents and Justin on numerous occasions. The court found the February 7, 2002, order regarding grandparent visitation was not vague. The district court ordered Kimberly to serve twenty days in jail, plus the seven days ordered on October 18, 2001. Kimberly was ordered to pay $750 in attorney fees for the grandparents and Justin.

Kimberly filed a motion to reconsider, claiming the grandparent visitation order was unconstitutional. The district court concluded the grandparent visitation order in this case was not unconstitutional because it was combined with the visitation ordered for Justin. Kimberly filed a petition for writ of certiorari.

II. Standard of Review

In this certiorari action, our review is for the correction of errors at law. Polk County Sheriff v. Iowa Dist Court, 594 N.W.2d 421, 423 (Iowa 1999). We will find a district court’s action is illegal when the court’s findings do not have substantial evidentiary support. Whitlock v. Iowa Dist. Court, 497 N.W.2d 891, 893 (Iowa 1993). On constitutional issues, our review is de novo. Perkins v. Board of Supervisors, 636 N.W.2d 58, 64 (Iowa 2001).

III. Constitutionality of section 598.35(6)

Kimberly contends the grandparent visitation order in this case, which was based on section 598.35(6), is unconstitutional. She asserts she should not be found in contempt for violating an unconstitutional order.

Section 598.35(6) provides for grandparent visitation when the “paternity of a child born out of wedlock is judicially established and the grandparent of the child is the parent of the mother or father ... and the mother of the child has custody of the child, or ... custody has been awarded to the father of the child.” A grandparent must also show visitation is in the best interests of the child and a substantial relationship already exists between the grandparent and grandchild. Iowa Code § 598.35.

In regard to grandparent visitation, the Iowa Supreme Court previously found section 598.35(1), which applied if the parents are divorced, was unconstitutional. In re Marriage of Howard, 661 N.W.2d 183, 192 (Iowa 2003). Section 598.35(3), which applied when the parent of the child, who was the child of the grandparent, had died, was also found unconstitutional. Lamberts v. Lillig, 670 N.W.2d 129, 135 (Iowa 2003). Moreover, section 598.35(7), which dealt with situations where the parent of the child unreasonably refused visitation by the grandparent, was also determined to be unconstitutional. Santi v. Santi 633 N.W.2d 312, 321 (Iowa 2001).

A parent’s interest in the care, custody, arid control of his or her child is “perhaps the oldest of the fundamental liberty interests.” Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 2060, 147 L.Ed.2d 49, 56 (2000). Any infringement on this interest by the State must be narrowly .tailored to serve a compelling State interest. Howard, 661 N.W.2d at 188. Protecting children from the cessation of a substantial existing grandparent-grandchild relationship may be considered a compelling State interest. Id. at 191. Our supreme court, however, has concluded other provisions of the grandparent visitation statute were not narrowly tailored:

[T]he grandparent-grandchild relationship requirement does not address the presumption that fit parents make decisions that benefit their children. There is nothing in either requirement that mandates the judge to give special weight to the parents’ decision. Accordingly, the statute on its face not only fails to recognize the degree of harm or potential harm to the child needed to support state intervention, but it also fails “to require a threshold finding of parental unfitness.” It also fails to require the court to consider a parent’s objections to allowing visitation. We believe these provisions must be a part of any grandparent visitation statute under our Due Process Clause.

Id. at 192 (citations omitted). In Lam-berts, the supreme court upheld its earlier conclusions in Howard. Lamberts, 670 N.W.2d at 133.

Section 598.35(6) is unconstitutional for the same reasons other provisions in the grandparent visitation statute were ruled unconstitutional. It fails to comport with the Due Process Clause on its face. Id.

IV. Collateral Bar Rule

Generally, a party cannot collaterally attack the validity of a court order which is the basis for a contempt decision. Allen v. Iowa Dist. Court, 582 N.W.2d 506, 508 (Iowa 1998). The proper means' to challenge an underlying court order is to' appeal that order. Id. Violation of an erroneous order may be punished by contempt. Iowa Supreme Court Bd. of Prof l Ethics & Conduct v. Hughes,- 557 N.W.2d 890, 892 (Iowa 1996). However, a person may not be punished- for violation of a void order. Id.

We note that in the past, where a statute was unconstitutional, the supreme court ruled a finding of contempt based on such a statute must be reversed. Livermore v. Livermore, 233 Iowa 1155, 1161, 11 N.W.2d 389, 392 (1943) (quoting State ex rel. Bissell v. Devore, 225 Iowa 815, 821, 281 N.W. 740, 743 (1938)); see also Eikenbury & Co. v. Edwards, 67 Iowa 619, 621, 25 N.W. 832, 833 (1885) (noting a person is not guilty of contempt for violating an order based on an unconstitutional statute). We conclude Kimberly should not be found in contempt for violating an unconstitutional order.

V. Contempt based on Grandparent Visitation

Because we have concluded section 598.35(6) is unconstitutional, we determine Kimberly should not be found in contempt for failing to provide grandparent visitation. We additionally determine the grandparent visitation order of February 7, 2002, was vague because it was not clear whether the grandparents were entitled to unlimited visitation as long as Justin did not object, or whether they were limited to twenty-five percent of Justin’s visitation and only during times when Justin was unavailable. A person will not be found in contempt if failure to comply with a court order is based on the indefiniteness of the order. In re Inspection of Titan Tire, 637 N.W.2d 115, 132 (Iowa 2001); Christensen v. Iowa Dist. Court, 578 N.W.2d 675, 678 (Iowa 1998).

We conclude Kimberly should not be found in contempt based on any failure to permit grandparent visitation.

VI. Sufficiency of the Evidence

Kimberly was found to be in contempt for failing to provide visitation to the grandparents and Justin. Although we have found Kimberly should not be punished for failing to provide grandparent visitation, she could still be in contempt based on the alleged failure to provide visitation to Justin. Kimberly claims Justin failed to meet his burden of proof to show she was in contempt.

A finding of contempt must be established by proof beyond a reasonable doubt. Gimzo v. Iowa Dist. Court, 561 N.W.2d 833, 835 (Iowa Ct.App.1997). Justin had the burden to prove Kimberly had a duty to obey the court order and willfully failed to perform that duty. See In re Marriage of Jacobo, 526 N.W.2d 859, 866 (Iowa 1995). If Justin showed a violation of a court order, Kimberly would have the burden to produce evidence that the violation was not willful. See id. Justin, however, would. retain the burden to prove willfulness beyond a reasonable doubt. See id.

Willful disobedience is shown by,

evidence of conduct that is intentional and deliberate with a bad or evil purpose, or wanton and in disregard of the rights of others, or contrary to a known duty, or unauthorized, coupled with an unconcern whether the contemnor had the right or not.

Lutz v. Darbyskire, 297 N.W.2d 349, 353 (Iowa 1980). A party may show a failure to comply with a court order was not willful because (1) the court order was indefinite, or (2) the contemnor was unable to perform the act ordered. Christensen, 578 N.W.2d at 678.

We determine Justin has failed to show, beyond a reasonable doubt, that Kimberly willfully violated a court order. We have already determined the order for grandparent visitation was vague as to the amount of visitation to which the grandparents were entitled. Justin’s mother, Sally, made almost all of the arrangements for visitation, and the grandparents picked Kiana up for visitation. It was unclear whether the grandparents were acting on their own behalf, or whether they were acting for Justin. Kimberly testified Sally would call and ask for “her” visitation. Because the court order was unclear regarding the amount of the grandparents’ visitation, Kimberly reasonably denied visitation to the grandparents in the belief that they had already exceeded the amount of visitation they were entitled to under the decree. We determine there is not evidence beyond a reasonable doubt that by her conduct Kimberly was intentionally denying visitation to Justin, since Justin almost never sought visitation on his own behalf.

We conclude Justin failed to show Kimberly willfully violated the court order regarding visitation.

VII. Other Issues

Because we have determined Kimberly was not in contempt in regard to either the grandparents or Justin, we also determine

the grandparents and Justin are not entitled to trial attorney fees. We reverse the decision of the district court. Costs of this appeal are assessed to Paul Kelly, Sally Kelly, and Justin Kelly.

REVERSED.


source: Caselaw Access Project

author: /s/ Paul H. Anderson Associate Justice

license: Public Domain

text:
    In re Petition for REINSTATEMENT to the Practice of Law OF Peter D. BERGSTROM, Registration No. 1533.
    No. A04-1574.
    Supreme Court of Minnesota.
    Oct. 7, 2004.
   ORDER

On July 12, 2002, this court publicly reprimanded petitionér Peter D. Berg-strom and ordered that the May 8, 1997, stay of his indefinite suspension remain in effect subject to the requirements existing at that time. Petitioner and the Director of the Office of Lawyers Professional Responsibility have entered into a stipulation in which they jointly recommend that the stayed suspension and the conditions of the stay be terminated.

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that the' stayed suspension of petitioner Peter D. Bergstrom is terminated and petitioner is reinstated to the practice of law effective immediately.

BY THE COURT:

/s/ Paul H. Anderson Associate Justice


text:
    In re Petition for DISCIPLINARY ACTION AGAINST Melanie Anne FLORES, a Minnesota Attorney, Registration No. 290865.
    No. A04-894.
    Supreme Court of Minnesota.
    Oct. 7, 2004.
   ORDER

On June '3, 2004, this court suspended respondent Melanie Anne Flores from the practice of law for a period of 30 days.

Respondent has filed with this court an affidavit stating that she has fully complied with the terms of the court’s suspension order. The Director of the Office of Lawyers Professional Responsibility has filed with this court an affidavit certifying that petitioner has complied with the terms of the suspension order and stating that he has no objection to reinstatement.

Based upon the files, records and proceedings herein,

IT IS HEREBY ORDERED that respondent Melanie Anne Flores is reinstated to the practice- of law in the State of Minnesota, effective immediately. Respondent shall successfully complete the professional responsibility bar examination by June 3, 2005, as required by Rule 18(e)(3), Rules on Lawyers Professional Responsibility.

BY THE COURT:

/s/ Paul H. Anderson Associate Justice


text:
    In re Petition for DISCIPLINARY ACTION AGAINST James J. BOYD, a Minnesota Attorney, Registration No. 1039X.
    No. A03-676.
    Supreme Court of Minnesota.
    Oct. 7, 2004.
   ORDER

On July 16, 2003, the court suspended respondent James J. Boyd from the practice of law for a period of six months with all but 30 days of the suspension stayed. The July 16, 2003, order required respondent to successfully complete the professional responsibility portion of the bar examination within one year from the date of the order.

By order dated August 2, 2004, the court, at respondent’s request, extended the time for respondent to pass the professional responsibility examination. The order also stated that “[n]o further extensions of time will be granted. The court will issue an order suspending respondent without further hearing or proceedings upon the Director’s affidavit that respondent did not take or did not pass the August 13, 2004, examination.”

The Director has filed an affidavit indicating that respondent did not pass the professional responsibility portion of the bar examination.

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that respondent James J. Boyd is suspended from the practice of law effective 14 days from the date of this order. Respondent may be reinstated to the practice of law pursuant to Rule 18(f), Rules on Lawyers Professional Responsibility, by submitting an affidavit with proof of successful completion of the professional responsibility portion of the bar examination. Such affidavit shall be filed with the court and served on the Director’s Office.

BY THE COURT:

/s/ Paul H. Anderson Associate Justice


author: G. BARRY ANDERSON, Judge.

text:
    FARM BUREAU MUTUAL INSURANCE CO., et al., Respondents, v. Eleanor SCHWAN, et al., Appellants.
    No. A04-368.
    Court of Appeals of Minnesota.
    Oct. 5, 2004.

      Mark M. Suby, Hansen, Dordell, Bradt, Odlaug & Bradt, P.L.L.P., St. Paul, MN, for appellants.

      Scott B. Lundquist, Lundquist Law Offices, Minneapolis, MN, for respondents.
    Considered and decided by ROBERT H. SCHUMACHER, Presiding Judge; G. BARRY ANDERSON, Judge; and HALBROOKS, Judge.
   OPINION

G. BARRY ANDERSON, Judge.

On January 12, 2004, respondents filed a motion seeking to enjoin appellants from competing with respondents in accord with a non-solicitation clause contained in employment contracts between appellant Schwan and respondents. The district court issued a temporary injunction, enjoining appellants from violating the non-solicitation clause, effective until July 1, 2004. This appeal follows.

FACTS

Respondents Farm Bureau Mutual Insurance Co. and Farm Bureau Life Insurance Co. hired appellant Eleanor Schwan on October 1, 1988, as an insurance agent, to sell insurance exclusively on behalf of respondents. Throughout the course of her employment, Schwan was required, as were all agents, to sign new employment contracts yearly. The contracts Schwan signed between 1988 and 2001 did not contain a non-solicitation clause, but in December 2001 respondents inserted such a clause; Schwan signed the December 2001 contract containing the non-solicitation clause. In January 2003, respondents required Schwan to sign a contract similar to the December 2001 contract; the January 2003 contract bore the signature of a new manager and limited enforceability of the non-solicitation clause to one year.

In June 2003, respondents required employees, including Schwan, to sign a revised contract. The non-solicitation clause was changed, expanding enforceability from one year to eighteen months, and the amended clause also gave respondents additional remedies, including the right to seek damages and attorney fees. Schwan left the employ of respondents without signing the latest version of the employment contract and began working for another insurance agency on approximately July 7, 2003. Thereafter, Schwan began working for appellant Miller-Hartwig Insurance Agency. Appellants allegedly violated the non-solicitation provisions by contacting respondents’ customers. Respondents’ motion to enjoin appellants from violating the non-solicitation contractual measures was granted; the injunction expired by its own terms on July 1, 2004.

ISSUES

I. Are the issues raised in this appeal moot because the challenged injunction expired on July 1, 2004?
II. Was the non-solicitation clause contained in Schwan’s contract supported by adequate consideration; and if so, did Schwan’s actions violate the non-solicitation clause?
III. Was the district court’s failure to impose a security bond in accordance with Minn. R. Civ. P. 65.03(a) clearly erroneous?

ANALYSIS

Standard of Review

This court will not overturn a district court’s ruling regarding the grant of a temporary injunction absent a clear abuse of discretion. Carl Bolander & Sons Co. v. City of Minneapolis, 502 N.W.2d 203, 209 (Minn.1993); LaValle v. Kulkay, 277 N.W.2d 400, 402 (Minn.1979).

I.

Respondents contend this appeal is moot. It is not necessary that a party raise the issue of mootness; appellate courts must address the issue because it is “a constitutional prerequisite to the exercise of jurisdiction”. In re Schmidt, 443 N.W.2d 824, 826 (Minn.1989). An issue is moot if “an event occurs pending appeal that makes a decision on the merits unnecessary or an award of effective relief impossible”. Hous. & Redev. Auth. ex rel. City of Richfield v. Walser Auto Sales, Inc., 641 N.W.2d 885, 888 (Minn.2002) (citing In re Application of Minnegasco, 565 N.W.2d 706, 710 (Minn.1997)). The mootness doctrine demands appellate courts hear only live controversies, and they may not issue advisory opinions. Chaney v. Minneapolis Cmty. Dev. Agency, 641 N.W.2d 328, 331 (Minn.App.2002), review denied (Minn. May 28, 2002). If this “court is unable to grant effectual relief,” the issue must be dismissed as moot. Schmidt, 443 N.W.2d at 826.

Here, Schwan entered into various contracts during her 15-year employment with respondents. At least two of those contracts contained a non-solicitation provision, and the most recent of those signed contracts limited enforceability of the provision to one year. The parties do not dispute that the applicable non-solicitation provision and district court injunction expired on July 1, 2004. Thus, because the non-solicitation provision and injunction expired while this appeal was pending, the issue of mootness must be addressed.

But dismissal does not automatically follow a determination that there is no actual controversy. Minnegasco, 565 N.W.2d at 710. A court will not dismiss an issue as moot if it is capable of repetition and likely to evade review. Schmidt, 443 N.W.2d at 826. Additionally, an issue will not be considered moot if it is related to “important public issues of statewide significance that should be decided immediately.” State v. Rud, 359 N.W.2d 573, 576 (Minn.1984). But no repetition is possible here because the contracted non-solicitation provision has expired and respondents are not seeking, and claim no right to, additional injunctive relief. Furthermore, there is nothing in the record before this court that hints an issue of “statewide significance” exists.

Although this issue is incapable of repetition regarding appellants, we must address whether it is capable of evading review. Appellants argue that the disputed non-solicitation clause is not supported by adequate consideration, and that issue applies to other individuals who signed the same contracts as appellant Schwan. Furthermore, appellants maintain that even if there was adequate consideration, appellants’ actions did not violate the non-solicitation clause. Appellants maintain the district court’s memorandum incorporated into the order for temporary injunction made factual determinations regarding appellants’ alleged violation of the non-solicitation clause that will be binding on the ultimate finder of fact during future district court proceedings.

When issuing a temporary or other interlocutory injunction, the district court is required to make factual findings supporting the issuance of such an order. Minn. R. Civ. P. 52.01 (“[I]n granting or refusing interlocutory injunctions the court shall similarly set forth the findings of fact and conclusions of law which constitute the grounds for its action.”); Ensco Int’l, Inc. v. Blegen, 410 N.W.2d 11, 13 (Minn.App.1987) (stating findings of fact are “required” and “necessary” when a district court grants a temporary injunction). Here, the district court found the non-solicitation clause valid and that appellants had violated the clause. But the district court also noted, “The facts at' this juncture ... are clearly in dispute”, and the order for temporary injunction directed the parties to contact district court administration to obtain a date for a trial on the: merits. These assertions clearly demonstrate the district court did not intend the findings to be binding on the ultimate finder of fact. ■ .

While the district court is required to make factual findings supporting the issuance of an order for a temporary injunction, such factual determinations are not. binding on the ultimate finder of fact, usually a jury, at trial. Minn. R. Civ. P. 65.02(c). Minnesota courts have long supported this proposition. Miller v. Foley, 317 N.W.2d 710, 712 (Minn.1982); Vill. of Blaine v. Indep. Sch. Dist. No. 12, Anoka County, 265 Minn. 9, 13, 121 N.W.2d 183, 187 (1963) (“[A]n order granting or refusing such remedy neither establishes the law of the case nor constitutes an adjudication of the issues on the merits. Only a trial on the merits has such effect.”); Haley v. Forcelle, 669 N.W.2d 48, 55 (Minn.App.2003), review denied (Minn. Nov. 25, 2003); Metro. Sports Facilities Comm’n v. Minn. Twins P’ship, 638 N.W.2d 214, 220 (Minn.App.2002), review denied (Minn. Feb. 4, 2002).

Because factual determinations are not binding on the ultimate finder of fact at trial, we decline to address whether the non-solicitation clause contained in Schwan’s contract is supported by adequate consideration or if appellants’ actions violated such a clause. Consequently, because the injunction at issue in this case expired pending appeal, and because the issue is incapable of repetition and evading review, this court is unable to grant appellants effectual relief. The appeal of the injunction is dismissed as moot.

II.

Appellants also contend the district court’s failure to order- a security bond in accordance with Minn. R. Civ. P. 65.03(a) was clearly erroneous. But we decline review of this issue because appellants failed to raise it below. Silver Bay Area Citizens Concerned for Quality Educ. v. Lake Superior Sch. Dist. No. 381, 448 N.W.2d 92, 96 (Minn.App.1989) (“Any challenge to the adequacy of a bond must first be raised and addressed by the district court.”), review denied (Minn. Jan. 23, 1990); see also Thiele v. Stick, 425 N.W.2d 580, 582 (Minn.1988) (“A reviewing court must generally consider only those issues that the record shows were presented and considered by the trial court in deciding the matter before it.” (quotation omitted)).

DECISION

Because: (1) the appeal of the temporary injunction is moot; (2) the factual findings in support of the district court’s order for temporary injunction are not binding on subsequent fact finding; and (3) appellants failed to raise the security bond issue below, we dismiss this appeal.

Appeal dismissed.

      . Minn. R. Civ. P. 65.02(c) states:
      [A]ny evidence received upon a motion for a temporary injunction which would be admissible at the trial on the merits becomes part of the trial record and need not be repeated at trial. This provision shall be so construed and applied as to preserve any rights the parties may have to trial by jury.

        Id. (emphasis added).


author: WRIGHT, Judge.

text:
    STATE of Minnesota, Respondent, v. Michael Wallace MITCHELL, Appellant.
    No. A03-110.
    Court of Appeals of Minnesota.
    Oct. 12, 2004.

      John M. Stuart, State Public Defender, Suzanne M. Senecal-Hill, Assistant State Public Defender, Minneapolis, MN, for Appellant.
    Mike Hatch, Attorney General, St. Paul, MN; and Larry M. Collins, Waseca County Attorney, Patrick M. Moen, Assistant County Attorney, Waseca, MN, for Respondent.
    Considered and decided by WRIGHT, Presiding Judge; RANDALL, Judge; and KALITOWSKI, Judge.
   OPINION

WRIGHT, Judge.

Appellant challenges his conviction for felony theft, arguing that the state’s evidence was insufficient to support his conviction and that the district court abused its discretion in ruling that appellant’s three prior burglary convictions could be used for impeachment. Appellant also argues that his Sixth Amendment right to a jury trial was violated when the district court imposed a sentence that was an upward durational departure under the career-offender statute, because the sentencing judge, not a jury, found that appellant had five or more prior felony convictions and that his offense was part of a pattern of criminal conduct. We affirm in part, vacate in part, and remand.

FACTS

At approximately 7:00 a.m. on September 27, 2002, Martin County Deputy Sheriff Charles Poppe was dispatched to an accident near Dunnell. On the scene, Poppe observed in a ditch an unlicensed van with a trailer in tow. Poppe identified the driver as appellant Michael Mitchell. The trailer had Minnesota license plates, but the rest of Mitchell’s registration information indicated that he was from Iowa. Poppe determined from a records check that the trailer belonged to Ag Power Enterprises, a utility company in Waseca. When questioned about the trailer, Mitchell said that he had recently acquired it from a friend. Mitchell reached for a piece of paper behind the driver’s seat, indicating that he had a receipt for the trailer. For safety reasons, Poppe directed Mitchell to leave the paper where it was. Without any indication that the trailer was stolen, Poppe permitted Mitchell to leave the scene.

Later that morning, the Waseca Police Department received a report that a utility trailer had been stolen from Ag Power Enterprises’ lot sometime after 6:30 p.m. on September 26. Officer Larry Thornhill responded to investigate the theft around noon on September 27. When Thornhill typed in the license-plate number of the stolen trailer, he received a message that Martin County law enforcement officials had encountered the trailer earlier that day. Thornhill contacted Poppe, who provided a description of Mitchell and the van. Mitchell was arrested a few days later.

Waseca County filed a complaint charging Mitchell with theft, in violation of Minn.Stat. § 609.52, subd. 2(1) (2002). Prior to trial, the state moved to impeach Mitchell with three burglary convictions. The district court granted the motion over Mitchell’s objection. Following the state’s case, Mitchell chose not to testify to preclude impeachment. The jury found Mitchell guilty of felony theft. The presumptive guideline sentence for Mitchell was an executed sentence of 21 months’ imprisonment. The district court imposed a sentence of 42 months’ imprisonment under the career-offender statute, Minn. Stat. § 609.1095, subd. 4 (2002), after finding that Mitchell had five or more prior felony convictions and that the present offense was committed as part of a pattern of criminal conduct. This appeal followed. After the case was submitted, the United States Supreme Court released its opinion in Blakely v. Washington, — U.S.—, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). We granted Mitchell’s motion to challenge his sentence on direct appeal and accepted supplemental briefing by the parties to address the impact of the Blakely decision, if any, on the sentence imposed.

ISSUES

I.Is the evidence sufficient to support the conviction of felony theft?

II. Did the district court abuse its discretion in ruling appellant’s prior convictions admissible for impeachment purposes?

III. Does the upward departure under the career-offender statute violate appellant’s constitutional right to a jury trial?

ANALYSIS

I.

In considering a claim of insufficient evidence, our review is limited to a careful analysis of the record to determine whether the jury, giving due regard to the presumption of innocence and the state’s burden of proof, could reasonably find the defendant guilty. State v. Webb, 440 N.W.2d 426, 430 (Minn.1989). We view the evidence in the light most favorable to the conviction, assuming the jury believed the evidence supporting the verdict and disbelieved any evidence to the contrary. State v. Moore, 438 N.W.2d 101, 108 (Minn.1989). It is the exclusive province of the jury to determine the weight and credibility to be afforded the testimony of each witness. State v. Folkers, 581 N.W.2d 321, 327 (Minn.1998).

“Circumstantial evidence is given the same weight as any other evidence as long as the circumstances proved are consistent with the hypothesis that the accused is guilty and inconsistent with any rational hypothesis except that of guilt.” State v. Pirsig, 670 N.W.2d 610, 614 (Minn.App.2003), review denied (Minn. Jan. 20, 2004). To successfully challenge a conviction based solely on circumstantial evidence, an appellant must establish the existence of evidence in the record that is consistent with a rational theory other than guilt. Id. “[P]ossibilities of innocence do not require reversal of a jury verdict so long as the evidence taken as a whole makes such theories seem unreasonable.”

State v. Ostrem, 535 N.W.2d 916, 923 (Minn.1995).

A person who “intentionally and without claim of right takes, uses, transfers, conceals or retains possession of movable property of another without the other’s consent and with intent to deprive the owner permanently of possession of the property” is guilty of theft. Minn.Stat. § 609.52, subd. 2(1) (2002).

Contending that the state failed to prove beyond a reasonable doubt that he “stole the trailer” in Waseca County, Mitchell argues that “the state’s case boiled down to one piece of circumstantial evidence: [Mitchell] had the trailer in a neighboring county approximately 13 hours after the trailer was last seen at Ag Power.” Our review of the evidence as a whole leads us to conclude that the circumstantial evidence of Mitchell’s guilt is strong and “inconsistent with any rational hypothesis except that of guilt.” Pirsig, 670 N.W.2d at 614 (emphasis added). Employees from Ag Power testified that the trailer was stolen from Ag Power’s lot in Waseca. Poppe and Thornhill testified that Mitchell was towing the trailer hours after it was stolen. And during his booking, Mitchell admitted possessing the stolen trailer. This evidence is entirely circumstantial. But, without more, Mitchell’s bald assertion during the booking that he purchased the trailer for $100 from “a friend” constitutes an implausible theory of innocence in light of the vagueness of Mitchell’s explanation, the time frame between the theft and Poppe’s encounter with Mitchell, Mitchell’s unemployment and homeless condition, and his claim to be traveling without any cash, checks, credit cards, or access to money. Based on the evidence as a whole, the jury reasonably could find Mitchell guilty of theft. Mitchell’s challenge to the sufficiency of the evidence, therefore, fails.

II.

Mitchell next argues that the district court abused its discretion when it granted the state’s motion to admit for impeachment purposes three prior burglary convictions without making explicit findings as to the application of the Jones factors. See State v. Jones, 271 N.W.2d 534, 537-38 (Minn.1978) (establishing five factor test to determine whether to admit prior convictions). Evidentiary rulings rest within the district court’s discretion and will not be disturbed in the absence of a clear abuse of discretion. State v. Ihnot, 575 N.W.2d 581, 584 (Minn.1998). Evidence of a witness’s prior convictions is admissible for impeachment if the crime is a felony and the district court determines that the probative value of admitting this evidence outweighs its prejudicial effect. Minn. R. Evid. 609(a)(1). “[IJmpeachment by prior crime aids the jury by allowing it to see the whole person and thus to judge better the truth of his testimony.” State v. Gassler, 505 N.W.2d 62, 67 (Minn.1993) (quotations omitted).

To determine whether the probative value of a defendant’s prior conviction outweighs its prejudicial effect, courts consider the following factors: (1) the impeachment value of the prior crime, (2) the date of the conviction and the defendant’s subsequent history, (3) the similarity of the past crime and the charged crime (the greater the similarity, the greater the reason for not permitting use of the prior crime to impeach), (4) the importance of the defendant’s testimony, and (5) the centrality of credibility as an issue. Jones, 271 N.W.2d at 537-38; see also Ihnot, 575 N.W.2d at 586 (reaffirming application of the Jones factors to determine whether probative value outweighs prejudicial effect). If the evidence of the prior conviction could have been admitted after a proper application of the Jones factors, the district court’s failure to make explicit findings as to these factors is harmless error. State v. Vanhouse, 634 N.W.2d 715, 719 (Minn.App.2001), review denied (Minn. Dec. 11, 2001).

Here,' the state moved to impeach Mitchell with three 1992 felony burglary convictions. The district court granted the state’s motion, allowing the impeachment evidence to be presented if Mitchell testified. But the district court did not make explicit findings as to the Jones factors. Because of the district court’s evidentiary ruling, Mitchell elected not to testify.

Our independent application of the Jones factors supports the district court’s determination that the impeachment evidence was more probative than prejudicial. Although the crimes did not directly involve dishonesty, they are probative of Mitchell’s credibility and would have assisted the jury in assessing his credibility. See State v. Ross, 491 N.W.2d 658, 659 (Minn.1992) (finding burglary conviction admissible under 609(a)(1) even though not a crime of dishonesty). Thus, the first factor weighs in favor of admitting the impeachment evidence.

Evidence of conviction is not admissible if more than ten years have elapsed since the date of the conviction or since the date of release from confinement for the conviction. Minn. R. Evid. 609(b). Mitchell was convicted of the relevant offenses in 1992 and released from prison in October 2000, two years prior to the trailer theft. ■ Thus, Mitchell’s convictions were not “stale” under Rule 609. And that he was in prison until shortly before the instant offense supports the conclusion that the probative value of the offenses had not diminished by the passage of time. See Gassier, 505 N.W.2d at 67 (finding that prior offense had not lost relevance due to passage of time). Accordingly, this factor weighs heavily in favor of admission.

Next, we note that burglary is an acquisitive crime, similar in nature to theft. Ross, 491 N.W.2d at 660. Although the similarity of the prior offenses and the charged offense does not preclude their admissibility for impeachment, this factor weighs against admission. State v. Bias, 419 N.W.2d 480, 487 (Minn.1988).

Finally, in examining the importance of a defendant’s testimony and the centrality of its credibility, we consider that Mitchell’s version of the facts was heard by the jury, notwithstanding his decision to refrain from testifying. Mitchell did not proffer any additional evidence that he would have presented had he testified. Moreover, because the jury was required to choose between Mitchell’s version of events and the evidence offered by the state, Mitchell’s credibility was a central issue in the case. Had he testified, the need for impeachment evidence would have been significant. See Gassler, 505 N.W.2d at 67; State v. Bettin, 295 N.W.2d 542, 546 (Minn.1980). These factors, therefore, weigh in favor of admission.

Because four of five Jones factors weigh in favor of admitting the impeachment evidence, the district court did not abuse its discretion in determining that the evidence was more probative than prejudicial. In light of this conclusion, the district court’s failure to make explicit findings as to the Jones factors was harmless error.

III.

Mitchell was sentenced under the career-offender statute to a double upward durational departure from 21 to 42 months’ imprisonment. To be sentenced under the career-offender statute, the offender must have “five or more prior felony convictions” and must have committed the present offense as part of a “pattern of criminal conduct.” Minn.Stat. § 609.1095, subd. 4 (2002). Mitchell has 12 prior felony offenses, calculated according to the sentencing guidelines, which limit prior offenses to those for which the sentence has expired or the offender has been discharged within the last 15 years. See Minn. Sent. Guidelines ILB.l.e. Many of Mitchell’s convictions were sentenced at the same time. But when his 1974 and 1980 convictions are counted (because sentencing calculations under the career-offender statute are not limited by the sentencing guidelines’ 15-year “look-back” provision), Mitchell has five prior sequential felony convictions as required by the career-offender statute. See State v. Huston, 616 N.W.2d 282, 284 (Minn.App.2000) (interpreting career-offender statute to require five separate and sequential convictions).

Mitchell argues that, under Blakely v. Washington, — U.S.-, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), the double departure violates his Sixth Amendment right to a jury determination of all facts essential to the punishment. Mitchell concedes that his criminal history is a factor that Blakely and preceding cases allow the sentencing judge, rather than the jury, to determine. See Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 2362-63, 147 L.Ed.2d 435 (2000) (holding fact of prior conviction may be determined by a judge). But he argues that the determination that those offenses were committed as part of a “pattern of criminal conduct” does not fall within that exception.

As an initial matter, we note that the career-offender statute establishes a “legislatively-created ground” for departure. State v. Rachuy, 502 N.W.2d 51, 52 (Minn. 1993). The statute does not rely on grounds for departure administratively established by the Sentencing Guidelines Commission. Thus, in applying Blakely to the career-offender departure at issue here, we need not address the broader question of whether Blakely applies to the Minnesota Sentencing Guidelines. We are mindful that some courts have considered the use of the term “statutory maximum” in Blakely, carried over from the Apprendi opinion, and have concluded that Blakely does not apply to administratively created sentencing guidelines schemes, such as the federal sentencing guidelines. See United States v. Hammoud, 381 F.3d 316 (4th Cir.2004). But since the upward departure at issue here results from a true “statutory” sentencing enhancement, the distinction drawn in Hammoud need not be addressed here.

The career-offender statute provides that, when a judge is imposing an executed sentence, and execution is the presumptive disposition, the judge “may impose an aggravated durational departure from the presumptive sentence up to the statutory maximum sentence” after finding (1) five or more prior felony convictions and (2) a “pattern of criminal conduct.” Minn.Stat. § 609.1095, subd. 4. A “pattern of criminal conduct” refers to “acts related to one another through a common scheme or plan or shared criminal purpose.” State v. Gorman, 546 N.W.2d 5, 9 (Minn.1996) (quoting Minn.Stat. § 609.902, subd. 6(3)(i) (1994), Minnesota Racketeer Influenced and Corrupt Organizations (RICO) statute). The pattern may be shown by “proof of criminal conduct similar, but not identical, in motive, purpose, results, participants, victims or other shared characteristics.” Id.

Determining whether a conviction is part of a “pattern of criminal conduct” involves a comparison of different criminal acts, weighing the degree to which those acts are sufficiently similar with respect to any of the characteristics listed in Gor-man. This determination goes beyond a mere determination as to the fact; or number, of the offender’s prior convictions, which judges are permitted to make without violating the Sixth Amendment jury-trial right.

The Apprendi court emphasized that the “prior conviction” recidivism factor is a “narrow exception” to the general rule that all facts essential to the maximum punishment must be found by the jury. 530 U.S. at 491, 120 S.Ct. at 2362. This exception is justified in part by “the certainty [of] procedural safeguards attached to any ‘fact’ of prior conviction.” Id. at 488, 120 S.Ct. at 2362. The bare fact of a prior conviction, however, does not establish the motive behind the crime, its purpose, results, participants, or victims. As to those aspects of the prior cohviction, so essential to the determination of a “pattern of criminal conduct” under Gorman, the earlier criminal prosecution has provided no “procedural safeguards.” We, therefore, conclude that the career-offender statute’s finding of “pattern of criminal conduct” is beyond the scope of the recidivism exception recognized in Apprendi Because the sentencing judge, not a jury, determined facts other than the fact of Mitchell’s prior convictions, which were essential to Mitchell receiving an enhanced sentence under the career-offender statute, the sentence was imposed in violation of the Sixth Amendment. Accordingly, we vacate the sentence imposed and remand for resentenc-ing in a manner not inconsistent with this opinion.

DECISION

The evidence is sufficient to support appellant’s conviction for felony theft. The district court did not abuse its discretion in ruling that appellant could be impeached with his prior burglary convictions. The district court’s imposition of an upward departure under the career-offender statute based on judicial findings, however, violated appellant’s Sixth Amendment right to a jury determination of all facts essential to his punishment.

Affirmed in part, vacated in part, and remanded.


text:
    MINNESOTA SOUVENIR MILKCAPS, LLC, et al., Appellants, v. STATE of Minnesota, et al., Respondents, Allied Charities of Minnesota, Intervener.
    No. A04-504.
    Court of Appeals of Minnesota.
    Oct. 12, 2004.

      Donald R. McNeil, Stephen F. Buterin, Coleman, Hull & Van Vliet, PLLP, Minneapolis, MN; and Kevin P. Staunton, Staun-ton Law Group PLLC, Edina, MN; and A.M. “Sandy” Keith, Dunlap & Seeger PA, Rochester, MN, for appellants.
    Mike Hatch, Attorney General, E. Joseph Newton, Assistant Attorney General, St. Paul, MN, for respondents.
    Mary B. Magnuson, Jacobson, Buffalo, Schoessler & Magnuson, Ltd., St. Paul, MN, for intervener.
    Considered and decided by TOUSSAINT, Chief Judge, Presiding; ANDERSON, Judge; and HALBROOKS, Judge.
   OPINION

G. BARRY ANDERSON, Judge.

Appellants distributed and marketed “milkcaps” with a promotional scratch game. Respondents notified appellants that the promotional game violated Minnesota law prohibiting lotteries. Appellants voluntarily ceased distribution of the milk-caps and brought an action seeking a declaratory judgment that their promotional game was not a lottery. The district court concluded that the promotional game was a lottery. We affirm.

FACTS

Appellant Wisconsin Souvenir Milkcaps, Inc. (Wisconsin Souvenir) is a Wisconsin corporation that sells milkcaps (also referred to as “pogs”). The milkcaps are marketed in Wisconsin using a promotional game. Wisconsin Souvenir also sells special “collector packets” without the game piece used in the promotional game. In July 2003, Wisconsin Souvenir entered into an agreement with Minnesota Souvenir Milkcaps LLC (Minnesota Souvenir) whereby Minnesota Souvenir would market and distribute a product and game in Minnesota that was virtually identical with the Wisconsin game.

Appellants identify the product as a “milkcap,” and it is described as a “removable perforated circle” on a piece of cardboard with “a picture laminated on it.” Milkcaps were originally designed for and used to sell milk bottles in the 1940s and 1950s. Vintage milkcaps are thicker than the milkcaps at issue and use printed, rather than laminated, pictures.

Included with the “milkcap” is a scratch game with prizes up to $250. Aside from some cosmetic differences, the only difference between the Minnesota and Wisconsin games is that the Wisconsin game is a pull-tab, rather than a scratch, game.

Each “milkcap” with its associated game piece costs the customer one dollar. Wisconsin Souvenir has produced approximately 3,000,000 milkcaps for use in Minnesota at a production cost of approximately $90,000. Retail outlets purchase a box of milkcaps for $400, and each outlet is responsible for paying $2,480 in prizes.

There is evidence in the record that Wisconsin Souvenir’s president and sole shareholder purchased three milkcaps that he produced in 1990, early on in Wisconsin Souvenir’s existence, for fifty cents each. One of appellants’ witnesses testified that she was aware of milkcaps selling for between $1.50 and $5, but the witness did not differentiate between vintage milkcaps and the replicas at issue here. Respondents’ expert witness testified that the milkcaps at issue here are valueless. Respondents’ witness also testified that the most he has ever spent on a milkcap was $85 for a very rare milkcap but that he had also recently bought and sold large quantities of more common milkcaps for ten cents apiece and four cents apiece.

In denying appellants’ request for declaratory judgment, the district court stated that the milkcaps are not sold as part of a package because a package includes “a legitimate product with an ascertainable value” and that the milkcaps were valueless. This appeal followed.

ISSUES

I. Must the product at issue have value to satisfy the requirements of an “in-package chance promotion?”

II. Did the district court clearly err in finding that the milkcaps at issue have no value?

ANALYSIS

I.

Appellants argue that the district court improperly imposed a requirement that the product have some kind of value to qualify for non-lottery status. Respondents argue that there is nothing “in-package” about the product because “package” means that there is a product for sale in a package, which, respondents argue, is not the case here.

Minnesota law makes conducting lotteries a misdemeanor. Minn.Stat. § 609.755 (2002). “A lottery is a plan which provides for the distribution of money, property or other reward or benefit to persons selected by chance from among participants some or all of whom have given a consideration for the chance of being selected.” Minn. Stat § 609.75, subd. 1(a) (2002). Thus, a lottery exists if (1) a prize or reward is offered, (2) chance determines who is awarded the prize, and (3) participants pay consideration for the chance to win the prize. Id. But an in-package chance promotion is not a lottery if (1) one can participate for “free and without purchase of the package,” (2) the permissible methods of participation are free and a “scheduled termination date of the promotion” is listed, (3) retailers are given entry forms so that customers can participate for free, (4) odds of winning are not misrepresented, (5) game pieces are randomly distributed and distribution records are maintained “for at least one year after the termination date of the promotion,” (6) “prizes are randomly awarded if game pieces are not used”, and (7) the sponsor provides the state with a record of those who were awarded prizes of $100 or more upon request, if the request is made within one year of the promotion’s termination date. Minn.Stat. § 609.75, subd. 1(b) (2002).

When a statute is unclear, courts attempt to give effect to the intent of the legislature. Minn.Stat. § 645.16 (2002). Further, “[wjords and phrases are to be given their ordinary meaning.” State v. Larivee, 656 N.W.2d 226, 229 (Minn.2003). Wisconsin has a statute that is substantially similar to Minn.Stat. § 609.75, subd. 1(b), but Wisconsin uses the term “in-pack chance promotion” instead of “in-package.” Compare Wis. Stat. § 100.16(2) (2002) with Minn.Stat. § 609.75, subd. 1(b) (using identical language). “Laws uniform with those of other states shall be interpreted and construed to effect their general purpose to make uniform the laws of those states which enact them.” Minn.Stat. § 645.22 (2002). This means that “when a Minnesota statute is modeled after another state’s statute, weight is accorded to the other state’s interpretation of the statute.” Larson v. Babcock & Wilcox, 525 N.W.2d 589, 591 (Minn.App.1994).

The Wisconsin Court of Appeals recently concluded that the Wisconsin version of the game at issue here was not a lottery. Bohrer v. City of Milwaukee, 248 Wis.2d 319, 635 N.W.2d 816, 816-22 (2001). In Bohrer, the state of Wisconsin argued that there was no real product involved in the game and, thus, the threshold requirement of an in-pack promotion was not met. Id. at 821. But no evidence was introduced by the state to support that argument; in fact, the virtually undisputed evidence was that the Wisconsin milkcaps were valuable. Id. at 821 n. 9 and accompanying text. Thus, the Wisconsin Court of Appeals rejected the state’s argument that no real product existed and concluded that the Wisconsin promotion was not a lottery. Id. at 821.

We reach a conclusion different from the Bohrer court, and we do so for two reasons: first, Bohrer is merely persuasive authority. Second, Bohrer was decided based on the failure of the state of Wisconsin to prove its case. Id. at 821. Indeed, respondent’s counsel vigorously contested issues that went unlitigated in Bohrer. Given the crucial nature of the second difference, Bohrer is of limited usefulness here.

In light of the disputed facts, the district court is correct that the term “in-package chance promotion” requires coupling the promotion with a legitimate, valuable product. Under Minnesota law, a qualifying promotion is not an exception to the prohibition against lotteries but is, instead, simply not a lottery. Because a lottery is defined, in part, as paying consideration for the chance to play the game, it is not a lottery if the payment is for the purchase of a product instead of the chance to win. See Minn.Stat. § 609.75, subd. 1 (defining a lottery, in part, as “giv[ing] a consideration for the chance of being selected”). Further, the term “in-package” must have meaning. See Minn. Stat. § 645.16 (2002) (“Every law shall be construed, if possible, to give effect to all its provisions.”). Logically, the term “in-package” means the package in which a product is kept for sale.

The district court properly interpreted “in-package chance promotion” to require an offer for the sale of a legitimate, valuable product. The term “in-package” at least implies that there is a real product for sale to which a chance promotion is added. Moreover, appellants’ argument is inconsistent with the definition of lottery because appellants’ contention would allow participants to pay almost all of their consideration for the chance to play a lottery with little consideration exchanged for the product. Further, appellants’ argument effectively eviscerates the lottery prohibition. Thus, the district court did not err in interpreting the statutory term “in-package” to require that there be a legitimate product for sale.

II.

Appellants argue that, even if the statute requires an offer of a legitimate and valuable product, the milkcaps are legitimate and valuable and that the district court clearly erred in finding to the contrary. Findings of fact are only reversed if they are clearly erroneous. Minn. R. Civ. P. 52.01. Findings of fact are clearly erroneous only if there is not “reasonable evidence to support” them. Fletcher v. St. Paul Pioneer Press, 589 N.W.2d 96, 101 (Minn.1999).

Here, the district court’s finding that these milkcaps do not have value is reasonably supported by the record and is not clearly erroneous. By any objective standard, these milkcaps have little value. It costs approximately $90,000 to produce approximately 3,000,000 “milkcaps,” which is approximately three cents per “milk-cap.” Retail outlets purchase a box of 3,600 milkcaps for $400, which is approximately eleven cents per “milkcap.” But perhaps most persuasively, retailers pay $2,480 per box for prizes; stated differently, the cost to the retailers for prizes is approximately seven times the purchase cost of the product. There was also expert testimony that these objects are not even milkcaps and currently have no value as collectibles. Finally, there was expert testimony that vintage milkcaps, milkcaps originally used to cap bottled milk, are typically bought for as little as ten cents per milkcap or less. While there was some limited contrary evidence regarding the valuation of these “milkcaps,” the district court did not clearly err in concluding that these milkcaps were worthless.

DECISION

The district court properly determined that for a promotion to qualify as an “in-package change promotion,” it must include in the package a legitimate, valuable product, and the district court did not clearly err in finding the milkcaps in this case have no value.

Affirmed.

      . Both appellants and respondents cite Albert Lea Amusement Corporation v. Hanson, 231 Minn. 401, 43 N.W.2d 249 (1950), and State v. Schubert Theatre Players Co., 203 Minn. 366, 281 N.W. 369 (1938). Those cases are of only minimal value because they are factually very dissimilar from the case at bar and, more importantly, because they both predate the “in-package chance promotion” provision of the statute.


text:
    ST. LOUIS PARK POST NO. 5632, et al., Plaintiffs, Clear Channel Outdoor, Inc., a Delaware corporation, Appellant, ASK Property Management, Inc., et al., Plaintiffs, v. CITY OF ST. LOUIS PARK, a municipal corporation, Respondent.
    No. A04-500.
    Court of Appeals of Minnesota.
    Oct. 12, 2004.
    Marvin A. Liszt, David K. Nightingale, Bernick and Lifson, P.A., Minneapolis, MN, for appellant.
    Thomas M. Scott, Campbell Knutson, P.A., Eagan, MN, for respondent.
    Gary A. Van Cleve, Anne M. Olson, Lar-kin Hoffman Daly <& Lindgren Ltd., Bloomington, MN, for amicus curiae Outdoor Advertising Association of Minnesota.
    Considered and decided by ANDERSON, Presiding Judge; WILLIS, Judge; and HALBROOKS, Judge.
   OPINION

G. BARRY ANDERSON, Judge.

Appellant Clear Channel Outdoor, Inc., instituted a declaratory judgment action, arguing Minn.S.tat. § 173.17(c) (2002) and the federal Highway Beautification Act, 23 U.S.C. § 181(g) (2000), preclude respondent City of St. Louis Park from requiring that a nonconforming billboard be removed as a condition of issuing a conditional use permit. The district court granted the city’s motion for summary judgment. Clear Channel appeals from that judgment. We affirm in part and remand.

FACTS

Clear Channel and St. Louis Park VFW Post 5632 entered into a five-year lease agreement on August 24, 2001. Under the lease, VFW granted Clear Channel the exclusive right to use a billboard located on top of a two-story building at Highway 100 and 36th Street in St. Louis Park. The billboard is presently a legal, but nonconforming, use on the property. At the time the lease began, VFW was the fee owner of the property.

In March 2002, Premier Equity Investments, Inc., owned by Korey Bannerman, entered into a purchase agreement with VFW to purchase the property. In May 2002, Bannerman, as president of ASK Properties, submitted an application to the city for a conditional use permit (CUP) to convert banquet facilities on the second floor of the building into multitenant office space, while maintaining VFW’s use of the first floor as a bar and restaurant. ASK was a proposed lessee of the property. The application was signed by Bannerman and by a second individual, whose signature is unrecognizable, but who was listed as the property’s “current fee owner.”

At the time of the CUP application, the property did not conform to the local zoning ordinance and those nonconformities included the billboard and the use of the property for the VFW. The city has an ordinance stating that if a new use requiring a CUP is proposed for part of a multi-tenant building, the city may issue the CUP so long as any nonconformities existing on the site are “brought into greater or complete compliance with other provisions of this chapter to the extent reasonable and possible.” St. Louis Park, Minn., City Code § 36 — 404(6)(b)(2) (2004).

On August 5, 2002, the city adopted Resolution 02-078, approving the requested CUP. The resolution stated that prior to issuance of a certificate of occupancy for any office use, a number of nonconformities on the property must be removed, discontinued, or phased out. The resolution also required that the billboard be removed and allowed VFW’s bar and restaurant to remain for up to 15 years.

On November 8, 2002, VFW closed on the sale of the property and delivered a warranty deed to Bannerman, Donald B. Kasbohm, and Donald F. Kasbohm. These individuals had replaced Premier Equity Investments, Inc., as buyers on the purchase agreement. After the sale, some attempts were made to terminate the billboard lease according to the lease’s early termination clause. Those attempts were not successful.

On April 29, 2003, Clear Channel filed a declaratory action against the city to protect Clear Channel’s interest in the billboard lease. On cross motions for summary judgment, Clear Channel argued that under Minn.Stat. § 173.17(c) (2002) and the federal Highway Beautification Act, 28 U.S.C. § 131(g) (2000), the city owed Clear Channel compensation for the removal of the billboard. The district court disagreed, granted the city’s motion for summary judgment, and dismissed all of Clear Channel’s claims with prejudice.

The property is now multitenant office space. By means of a stipulated agreement, the city granted a temporary certificate of occupancy and permitted the billboard to remain pending this litigation.

ISSUES

I. Did the district court err in granting summary judgment in favor of the city on Clear Channel’s claim for compensation, arising under Minn.Stat. § 173.17(c) (2002) and the federal Highway Beautification Act, 23 U.S.C. § 131(g) (2000)?
II. Did the district court err in granting summary judgment in favor of the city on Clear Channel’s other claims including that the city acted arbitrarily and capriciously and denied Clear Channel’s right to due process?

ANALYSIS

On appeal from summary judgment, we review the record to answer two questions: (1) whether there are any genuine issues of material fact, and (2) whether the district court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990). Summary judgment is appropriate when there are no genuine issues of material fact and either party is entitled to judgment as a matter of law. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn.1993). A genuine issue of material fact exists when the nonmoving party presents evidence that creates doubt about a factual issue that is both probative of an essential element of the nonmoving party’s case and that would permit a reasonable person to draw a different conclusion. DLH, Inc. v. Russ, 566 N.W.2d 60, 71 (Minn.1997). This court reviews “the evidence in the light most favorable to the party against whom judgment was granted.” Fabio, 504 N.W.2d at 761.

I.

Clear Channel argues that the district court erred in granting summary judgment in favor of the city on its claim for compensation arising under Minn.Stat. § 173.17(c) (2002) and the federal Highway Beautification Act (HBA), 23 U.S.C. § 131(g) (2000). We disagree.

Private property cannot be taken for public use without-, just compensation. U.S. Const, amend. V; Minn. Const, art. 1, § 13. The HBA provides that property rights in outdoor advertising devices are entitled to the same protections. See 23 U.S.C. § 131(g) (requiring just compensation be paid “upon the removal of any outdoor advertising sign ... lawfully erected under State law and not permitted under [§ 131(c)]”). The HBA further requires that federal highway funds be reduced by ten percent to any state that does not enact provisions for the “effective control” of certain outdoor advertising. 23 U.S.C. § 131(b) (2000).

In compliance with the HBA, the Minnesota legislature passed substantive amendments to the Minnesota Outdoor Advertising Control Act. Minn.Stat. §§ 173.01-173.27 (2002). In part, Minnesota’s statute provides:

[N]o advertising device which was lawfully erected shall be removed until all rights in the property, personal or real, have been acquired by purchase, gift, or eminent domain proceedings under chapter 117, whether or not the advertising device is removed pursuant to this chapter or any other statute, ordinance, or regulation of any political subdivision of the state or local zoning authority.

Minn.Stat. § 173.17(c).

Clear Channel’s property interest is its billboard lease. See Siggelkow v. Arnold, 187 Minn. 395, 397, 245 N.W. 629, 630 (1932) (noting a five-year leasehold is an interest in realty). To determine whether the city has deprived Clear Channel of its property interest such that compensation is owed, we must consider whether the city has altered the terms of the lease. Naegele Outdoor Advertising Co. v. City of Lakeville, 532 N.W.2d 249, 252-53 (Minn. App.1995) (considering the effect of a city ordinance on a billboard lease to determine whether the lessee was owed compensation), review denied (Minn. Jul. 20, 1995).

The parties agree that the billboard is currently a legal, but nonconforming, use of the property on which it is located. Applying the city code, the city informed the landowner that the billboard must be removed as a condition of the city approving the landowner’s request to develop the property. St. Louis Park, Minn., City Code § 36^04(6)(b)(2) (2004) (providing that where a new use requiring a CUP is proposed for part of a multitenant building, the city may issue a CUP as long as nonconformities existing on the site are “brought into greater or complete compliance with other provisions of this chapter to the extent reasonable and possible”). Clear Channel contends that it must be compensated for the loss of its billboard lease due to the city’s imposition of the removal requirement.

But the city’s action has not altered the lease. If the landowner chooses to forgo property development, the billboard may remain under the terms of the lease for so long as the landowner wishes. If the landowner chooses to develop the property before the lease expires, Clear Channel may leverage whatever remedies state law provides if the landowner’s decision amounts to a breach of the billboard lease. As such, the city has not changed the terms of the billboard lease and it does not owe Clear Channel compensation under Minn. Stat. § 173.17(c). E.g., Outdoor Sys., Inc. v. City of Mesa, 997 F.2d 604, 618 (9th Cir.1993) (holding that city codes requiring removal of nonconforming billboards when property is developed did not affect taking of the leasehold because codes allowed billboards to remain as long as landowner wished and lessees had state-law remedies for breach of contract).

We note that our analysis is supported by this court’s opinion in Naegele, 532 N.W.2d 249. In that case, the City of Lakeville required that five landowners, as a condition of development, remove nonconforming billboards located on their properties. Id. at 251. The landowners terminated Naegele’s leasehold interests by exercising early termination clauses, the billboards were removed, and the properties were developed. Id. According to this court, “[t]he property owners terminated Naegele’s leasehold interests when they exercised their lease options. Nae-gele’s leasehold interests were not altered by the ordinance because the ordinance allowed the billboards to remain as long as the landowner desired and permitted that land use.” Id. at 253. In this case, as in Naegele, the city has not acted in any manner that changed the leasehold interest, and it therefore does not owe compensation under Minn.Stat. § 173.17(c).

Clear Channel attempts to distinguish this case from Naegele and urges this court to follow the reasoning in Lamar Advertising Co. v. Charter Township of Clinton, 241 F.Supp.2d 793 (E.D.Mich. 2003). We find Clear Channel’s attempt to distinguish Naegele unpersuasive. The facts in Lamar are significantly different than the facts presented here. In Lamar, a landowner sought a variance from the township regarding construction of a parking lot. Id. at 796. Acting on an “informal policy” of removing billboards, the township imposed an “unrelated” condition on the variance that a nonconforming billboard, which was “some 200 feet away from the new parking lot,” be removed. Id. at 795-76.

Here, the landowner sought to develop a new use of the property and sought a CUP from the city for that development. The city informed the landowner that removal of the nonconforming billboard was a condition of development pursuant to the applicable ordinance. Clear Channel does not challenge the city ordinance that designates this billboard as a nonconforming use. Clear Channel challenges the application of the ordinance requiring that non-conformities be eliminated, to the extent reasonable and possible, upon development of property into a multitenant building. St. Louis Park, Minn., City Code § 36-404(6)(b)(2). But this ordinance, like the one in Naegele, does not affect the rights and responsibilities that arise under the lease. If the landowner chooses to remove the billboard, or otherwise requires Clear Channel to do so, then Clear Channel will have whatever remedies are available, if any, under its lease and associated contract law.

Clear Channel and amicus curiae further argue that the district court misread the Minnesota Outdoor Advertising Control Act to require that compensation must be paid only where the sign is prohibited by provisions of the act. The conclusion critical to an understanding of the district court’s order is found at paragraph 33, which states, “Minn.Stat. § 173.17(c) does not apply to the facts of this case. Nae-gele is controlling law in this case as contractual issues control whether or not the [billboard] is to be moved.” We read this conclusion, to mean, as we have concluded here, that compensation under Minn.Stat. § 173.17(c) is not owed. The district court did not err in granting summary judgment to the city.

II.

Clear Channel contends that the only issue before the district court was its right to compensation under Minn.Stat. § 173.01 and the HBA, and therefore the district court erred by awarding summary judgment to the city on all of Clear Channel’s other claims.

Clear Channel requested “partial” summary judgment on its claim for just compensation. Clear Channel did not request summary judgment as to other claims pleaded in the complaint, including the claims that the city acted arbitrarily and capriciously and that the city acted in violation of Clear Channel’s due process rights. The city, however, requested summary judgment on all of Clear Channel’s claims, arguing that Naegele, 532 N.W.2d at 249, was controlling precedent as to the claim for just compensation and that lach-es precluded Clear Channel from raising all other claims.

The district court’s memorandum states that the only issue before it was Clear Channel’s compensation claim, and thoroughly analyzes the reasons for granting summary judgment to the city on that issue. But the memorandum does not explain the basis for granting summary judgment to the city on Clear Channel’s other claims. Thus, it is not apparent whether the district court inadvertently granted summary judgment in the entirety, whether it adopted the city’s reasoning on laches and granted summary judgment for that reason, or whether it had another basis for granting summary judgment on all claims.

The award of summary judgment will be affirmed if it can be sustained on

any ground. Myers v. Price, 463 N.W.2d 773, 775 (Minn.App.1990), review denied (Minn. Feb. 4, 1991). But it is difficult to provide appellate review when the district court fails to state reasons justifying its decision. See Boughton v. Boughton, 385 N.W.2d 384, 387 (Minn.App.1986) (remanding for consideration of attorney fees issue when district court’s order did not specifically address appellant’s request for fees). Therefore, we remand this matter to the district court to permit it to address the claims made by Clear Channel, other than the compensation claim already decided. We express no opinion regarding whether summary judgment as to the remaining claims would be appropriate.

DECISION

The district court did not misapply the law in determining that Clear Channel has no right to compensation under Minn.Stat. § 173.17(c) (2002). The parties’ lease controls whether Clear Channel will be owed compensation if the billboard is removed by decision of the landowner. Summary judgment was correctly awarded to the city on the issue of just compensation. We remand to the district court to address the propriety of summary judgment on Clear Channel’s other claims.

Affirmed in part and remanded.

      . The lease provides:
      At any time during the Term of this Lease, the Lessor will have the right to terminate this Lease early for the Sale and/or Redevelopment of the Property requiring the removal of the Lessee’s Advertising Sign from site, by providing the Lessee with a Seventy Five (75) day written notice of Early Termination to the office of the Lessee as provided for in Paragraph 11 above, along with a check for reimbursement, on a pro rata basis, for Rent pre-paid for the unexpired term resulting from the Lessor’s Early Termination of this Lease.


author: MARING, Justice.

text:
    2004 ND 188
    Roland C. RIEMERS, Plaintiff and Appellant v. Thomas OMDAHL and Steve Simonson, Defendants and Appellees.
    No. 20040099.
    Supreme Court of North Dakota.
    Oct. 12, 2004.

      Roland C. Riemers (pro se), Grand Forks, plaintiff and appellant, submitted on brief.
    Patrick J. Maddoek and Gerad C. Paul, Camrud, Maddoek, Olson & Larson, Ltd., Grand Forks, for defendants and appel-lees, submitted on brief.
   MARING, Justice.

[¶ 1] Roland C. Riemers appealed from a summary judgment dismissing his legal malpractice action against Steve Simonson and Thomas Omdahl. We hold Riemers’ malpractice claims are barred by the statute of limitations, and we affirm.

I

[¶ 2] Simonson worked as a lawyer at Omdahl’s law firm until October 2000. In March 1999, Simonson helped prepare a premarital agreement for Riemers and Je-nese Peters-Riemers. In March 2000, Riemers retained Simonson to defend him against an aggravated assault charge stemming from Riemers’ altercation with Peters-Riemers. Riemers subsequently pled guilty to simple assault in October 2000. In May 2001, in Peters-Riemers’ divorce action against Riemers, a district court judge declared the premarital agreement invalid and, based in part on Riemers’ guilty plea to simple assault, concluded Riemers had a pattern of inflicting domestic violence upon Peters-Riemers. A judgment was entered in the divorce action in June 2001, and we affirmed-the judgment in Peters-Riemers v. Riemers, 2002 ND 72, ¶¶ 1, 31, 644 N.W.2d 197, cert. denied 537 U.S.. 1195, 123 S.Ct. 1252, 154 L.Ed.2d 1031 (2003).

[¶ 3] By a complaint dated February 12, 2003, Riemers attempted to sue Simon-son and his employer, Omdahl, for legal malpractice. The district court dismissed that action without prejudice, concluding Riemers had failed to properly serve process on Simonson and Omdahl. On October 31, 2003, Riemers commenced this legal malpractice action against Simonson and Omdahl, alleging they were negligent in advising him about the premarital agreement and in advising and defending him on the assault charge. Simonson and Omdahl moved for summary judgment, asserting Riemers’ action was barred by the statute of limitations. The district court concluded Riemers’ claims were barred by the applicable statute of limitations and granted summary 'judgment dismissing Riemers’ action.

II

[¶ 4] Riemers argues the district court erred in granting Simonson and Omdahl summary judgment. In Zuger v. State, 2004 ND 16, ¶¶ 7-8, 678 N.W.2d 615 (citations omitted), we outlined our standard of review for summary judgment:

Summary judgment is a procedural device for promptly disposing of a lawsuit without a trial if there are no genuine issues of material fact or inferences which can reasonably be drawn from undisputed facts, or if the only issues to be resolved are questions of law. “Whether summary judgment was properly granted is ‘a question of law which we review de novo on the entire record.’ ” On appeal, this Court decides if the information available to the trial court precluded the existence of a genuine issue of material fact and entitled the moving party to summary judgment as a matter of law. Summary judgment is appropriate against parties who fail to establish the existence of a factual dispute on an essential element of a claim on which they will bear the burden of proof at trial.
A party resisting a motion for summary judgment may not simply rely upon the pleadings or upon unsupported, conclusory allegations. “Factual assertions in a brief do not raise an issue of material fact satisfying Rule 56(e).” “Nor may a party merely reassert the allegations in his pleadings in order to defeat a summary judgment motion.”
The resisting party must present competent admissible evidence by affidavit or other comparable means which raises an issue of material fact and must, if appropriate, draw the court’s attention to relevant evidence in the record by setting out the page and line in depositions or other comparable documents containing testimony or evidence raising an issue of material fact.
In summary judgment proceedings, neither the trial court nor the appellate court has any obligation, duty, or responsibility to search the record for evidence opposing the motion for summary judgment. The opposing party must also explain the connection between the factual assertions and the legal theories in the case, and cannot leave to the court the chore of divining what facts are relevant or why facts are relevant, let alone material, to the claim for relief.
Mere speculation is not enough to defeat a motion for summary judgment, and a scintilla of evidence is not sufficient to support a claim. If no pertinent evidence on an essential element is presented to the trial court in resistance to a motion for summary judgment, it is presumed that no such evidence exists.

Ill

[¶ 5] Riemers argues a plaintiffs knowledge of the accrual of a cause of action is a question of fact, which is not appropriate for summary judgment. He claims a reasonable person would assume that when an injustice was done him in the lower court in his divorce action, it would be corrected in a higher court. He claims, as a pro se litigant, he had a “reasonable person understanding that he really suffered no financial loss until” this Court’s May 2002, decision in his appeal. He thus claims the commencement of his action in October 2008, was within the two-year statute of limitations for legal malpractice actions.

[¶ 6] Under N.D.C.C. § 28-01-18(3), a legal malpractice action must be commenced within two years after the cause of action accrues. Wall v. Lewis, 393 N.W.2d 758, 761 (N.D.1986); Binstock v. Tschider, 374 N.W.2d 81, 84 (N.D.1985). We have adopted the discovery rule for legal malpractice actions, which contemplates that the statute of limitations begins to run when the plaintiff knows, or with reasonable diligence should know, of the injury, its cause, and the defendant’s possible negligence. Wall, at 761. The discovery rule focuses on whether the plaintiff has been apprised of facts which would place a reasonable person on notice that a potential claim exists, and it prevents the injustice of barring a claim before the plaintiff reasonably could be aware of its existence. Id. The discovery rule employs an objective standard of knowledge, and a plaintiff need not be subjectively convinced of the injury and that the injury was caused by the defendant’s negligence. Id.

[¶ 7] Under the discovery rule, the statute -of limitations does not begin to run until the plaintiff has incurred some injury or damage. Larson v. Norkot Mfg., Inc., 2002 ND 175, ¶10, 653 N.W.2d 33 (citing Wall v. Lewis, 366 N.W.2d 471, 473 (N.D.1985)). It is not necessary for the plaintiff to fully appreciate the potential liability, or even be convinced of an injury; the objective standard requires only that the plaintiff be aware of facts that would place a reasonable person on notice that a potential claim exists. Larson v. Norkot Mfg., Inc., 2001 ND 103, ¶ 13, 627 N.W.2d 386. In Wall, 366 N.W.2d at 473 (quoting Budd v. Nixen, 6 Cal.3d 195, 98 Cal.Rptr. 849, 491 P.2d 433, 436-37 (1971)), we explained:

... until the client suffers appreciable harm as a consequence of his attorney’s negligence, the client cannot establish a cause of action for malpractice. Prosser states the proposition succinctly, ‘It follows that the statute of limitations does not begin to run against a negligence action until some damage has occurred.’ (Prosser, Law of Torts (4th ed. 1971), § 30 at p. 144.)
The cause of action arises, however, before the client sustains all, or even the greater part, of the damages occasioned by his attorney’s negligence..:. Any appreciable and actual harm flowing from the attorney’s negligent conduct establishes a cause of action upon which the client may sue.
Indeed, once having discovered his attorney’s negligence and having suffered some damage, the client must institute his action within the time prescribed in the statute of limitations or he will be barred .from thereafter complaining of his attorney’s conduct.

See. also Larson, 2002 ND 175, ¶ 10, 653 N.W.2d 33.

[¶ 8] Under the discovery rule, a plaintiffs knowledge is ordinarily a question of fact, and summary judgment is rarely appropriate on the issue of when the plaintiff should have discovered there was a potential malpractice claim. Duncklee v. Wills, 542 N.W.2d 739, . 742 (N.D. 1996). However, issues of fact may become issues of law if reasonable persons could reach only one conclusion from the facts, see Twogood v. Wentz, 2001 ND 167, ¶ 10, 634 N.W.2d 514, and a plaintiffs knowledge qí a potential claim is an issue of law if the evidence is such that reasonable minds could draw but one conclusion from the evidence.. Wall, 393 N.W.2d at 761.

[¶ 9] -Here, the defendants’ alleged negligent acts, the advice on the premarital agreement in March 1999 and the advice and defense in the criminal case in 2000, occurred more than two years before Riemers commenced this action in October 2003.- Riemers claims, however, there are disputed factual issues about when he discovered his injury. He claims he had a reasonable expectation this Court would overturn the divorce court’s decision, and to the best of his knowledge and belief, he suffered no irreparable harm until this Court’s decision in May 2002. His affidavit in opposition to the motion for summary judgment states:

1. That Steve Simonson, and [sic] employee of Thomas Omdahl, was employed by me about March of 1999 to do a premarital agreement, and later to defend me on a domestic assault charge in March 2000.
2. At no time following those dates have either Simonson &/or Omdahl notified me or any court that they have discontinued their representation of me on any of these matters.
8. That following those dates, I had from time to time ongoing contacts with Simonson &/or Omdahl in regards to those matters, or matters directly or indirectly relating to those matters, and I believe the last contact was sometime in 2002.
4. To the best of my knowledge and/or belief, Simonson &/or Omdahl professional legal services were only definitely terminated when I filed my first complaint against them on 12 February 2003.
5. Although the Traill County District Court ruled my Premarital Agreement was unenforceable in May of 2001, I immediately appealed said ruling to the North Dakota Supreme Court and I had reasonable expectation that the Supreme Court would surely overturn such a ruling. A ruling that was contrary to law and fact. I believe my reasonable belief meets the reasonable person standard in that the average North Dakota citizen believes justice will be done on an appeal to the North Dakota Supreme Court and that contracts will be upheld.
6. To the best of my knowledge and belief, I suffered no ill-repairable [sic] harm from that belief until the 14 May 2002 judgment, which to my utter shock and surprise, upheld the draconian Traill County Court ruling. Peters-Riemers v. Riemers, 2002 ND 72, 644 N.W.2d 197.
7. To my information and belief, up till the May 2002 Supreme Court decision, I had utter faith in the professional judgment and guidance of the defendants, and thus had no reason to consider action against them for malpractice.
8. In regards to the Alford plea, it played only a minor part in the divorce trial, but in subsequent legal actions over the past two years I have repeatedly been hammered and injured (example: Supreme Court appeals of Riemers v. Michael Crocker and Traill County, 20080317 and 20030318) with the fact that I made an unqualified guilty plea to the assault charge and therefore admitted guilt to domestic abuse, and in 2002 even led to the Grand Forks Herald publicly declaring that I was a “wife beater.”
9. Following the 6 October 2000 Alford plea, I did from time to time consult with Simonson &/or Omdahl during the year of probation either in person or by phone, and I considered that they were passively representing me on that criminal issue through 2001.

[¶ 10] In Jacobsen v. Haugen, 529 N.W.2d 882, 885 (N.D.1995), we held the entry of a money judgment was sufficient injury to sustain a legal malpractice action and we rejected an argument that the statute of limitations for bringing a legal malpractice action was tolled until after the appellate process was completed. In Jacobsen, at 885, we concluded the plaintiffs knew of their injury, its cause, and the attorney’s possible negligence more than two years before they sued the attorney, and we said “[mjerely because a judgment might be reversed on appeal does not justify extending the statute of limitations until an appeal is completed.” We indicated “ ‘an injury does not disappear or become suspended while a more final adjudication of the result is sought,’ ” and we joined those courts that have concluded a cause of action for presently identifiable damages is not tolled pending appeal. Id. at 885-86 (quoting 2 Ronald E. Mallen <& Jeffrey M. Smith, Legal Malpractice § 18.11, p. 45 (3d ed.) (1993 pocket part)).

[¶ 11] Although Riemers claims Jacobsen is “plain and simply, bad law,” we adhere to that decision. We also reject Riemers’ claim there is a higher reasonable person standard because he is not an attorney. The reasonable person standard contemplates an ordinary lay person with no special skill or learning. See Anderson v. North Dakota Workers Compensation Bureati, 553 N.W.2d 496, 499 (N.D.1996). We conclude reasonable persons could not disagree that Riemers knew, or with reasonable diligence should have known, of any alleged malpractice by the defendants and any potential injury at least by the time the judgment was entered against him in the divorce action in June 2001. Riemers commenced this action against Si-monson and Omdahl in October 2003, and it was therefore commenced outside the two-year statute of limitations for legal malpractice actions.

[¶ 12] Riemers nevertheless argues that because Simonson and Omdahl did not terminate their representation of him until February 12, 2003, when he initially attempted to commence his malpractice action against them, his . action for malpractice commenced on October 31, 2003, was within the applicable two-year statute of limitations. He argues Simon-son and Omdahl failed to follow the procedure for termination of representation in N.D.R. Prof. Conduct 1.16, and he claims “from time to time [he] had brief consultations with the Defendants in regards to the divorce and criminal charge.” He argues at no time before February 2003, did the defendants notify him or the courts that they no longer represented him, and they continuously represented him.

[¶ 13] We have adopted the continuous representation rule for legal malpractice actions, which tolls the statute of limitations or defers accrual of the cause of action while the attorney continues to represent the client and the representation relates to the same transaction or subject matter as the allegedly negligent acts. Wall, 393 N.W.2d at 762-63. See also Jacobsen, 529 N.W.2d at 885; Bjorgen v. Kinsey, 466 N.W.2d 553, 557-58 (N.D. 1991); Binstock, 374 N.W.2d at 85. See generally 3 Ronald E. Mallen & Jeffrey M. Smith, Legal Malpractice § 22.13 (5th ed. 2000). The continuous representation rule protects the integrity of the attorney-client relationship and affords the attorney an opportunity to remedy an error, or to establish that there has been no error, while simultaneously preventing the attorney from defeating a client’s cause of action through delay. Wall, at 763. The continuous representation rule preserves the attorney-client relationship by guaranteeing the client that the attorney will put forth a better effort to preserve the client’s interests and avoids speculative litigation -by obviating the need for a lawsuit by the client, before the attorney attempts to avoid any damage to the client’s interest. Id. The continuous representation rule requires any subsequent representation to relate to the same transaction or subject matter as the allegedly negligent acts. Wall, 393 N.W.2d at 762; Binstock, 374 N.W.2d at 85. Thus, in Binstock, at 85, we acknowledged that the attorney in that case had subsequently represented the client on other matters, but we concluded the client had not drawn our attention to any evidence in the record raising a disputed issue of fact about whether the attorney continued to represent the client with regard to the allegedly negligent drafting of an option contract. We held summary judgment was appropriate because the statute of limitations barred the client’s action. Id.

[¶ 14] In Wall, 393 N.W.2d at 763-64, we considered an issue about the termination of representation in the context of the continuous representation rule. We recognized that in a different context we had implied that the determination of the date of termination of an attorney’s representation of a client is generally a question of fact. Id. at 763 (citing Thomas v. Thomas, 382 N.W.2d 639, 643 (N.D.1986)). We also recognized other courts have generally treated the termination of representation under the continuous representation rule as a question of fact. Wall, at 763. In Wall, at 763-65, the record on appeal was insufficient to resolve the issues about continuing representation and termination of the attorney-client relationship, and in view of the party’s concessions that additional discovery would resolve the issues, we remanded for development of the record.

[¶ 15] One commentator has recognized that ordinarily an attorney’s representation of a client does not terminate until the agreed tasks or events have occurred, the client consents to termination, or a court grants an application by counsel to withdraw. 3 Ronald E. Mallen & Jeffrey M. Smith, Legal Malpractice at § 22.13, p. 441. There is no bright-line rule for determining when representation ends, because the particular circumstances of each case must be considered and the termination of representation may be implied from the evidence. Id. at p. 443.

[¶ 16] Riemers has not drawn our attention to any evidence indicating the defendants continued to represent him after the premarital agreement was signed and he pled guilty to simple assault. Riemers appeared pro se in this Court in his divorce action, Riemers, 2002 ND 72, ¶ 4, 644 N.W.2d 197, and he has cited nothing in this record specifically indicating Simon-son and Omdahl continued to represent him on the premarital agreement or the criminal charge. Riemers’ conclusory allegations that “from time to time [he had] ongoing contacts with Simonson &/or Om-dahl in regards to [the premarital agreement and the criminal] matters, or matters directly or indirectly relating to those matters,” lack sufficient specificity to raise an issue of fact that the defendants continued to represent Riemers after the premarital agreement was signed in March 1999, and after the criminal matter ended with a guilty plea in October 2000. Mere speculation about ongoing contacts is not sufficient to defeat a motion for summary judgment. See Thomas, 382 N.W.2d at 642-43 (stating absent other factors indicating an ongoing attorney-client relationship, there is no presumption of continuing representation by an attorney in a divorce matter after entry of the original judgment and expiration of the time for appeal). Riem-ers employed Simonson and Omdahl to advise him on a premarital agreement and to advise and defend him in the criminal case. Those agreed tasks were completed when the premarital agreement was signed and when Riemers pled guilty to the criminal charge, and Riemers has not drawn our attention to any specific evidence to indicate when he may have thereafter contacted Simonson or Omdahl in regards to those matters. See Binstock, 374 N.W.2d at 85 (holding that representation of client on other matters insufficient to raise factual dispute that representation relates to same transaction or subject matter as allegedly negligent acts). We conclude Riemers’ conclusory assertions are insufficient to raise a factual .issue under the continuous representation rule.

[¶ 17] Riemers’ reliance on N.D.R. Prof. Conduct 1.16 to show continuous representation is misplaced. That rule provides guidance for when an attorney may not represent a client, or must withdraw from representation. The issue in this case is not whether the defendants were subject to rules for formal withdrawal, but whether the defendants continued to represent Riemers.

[¶ 18] We conclude Riemers has failed to offer specific facts supporting his con-clusory assertion that Simonson and Om-dahl continue to represent him in connection with the premarital agreement and the criminal charge. We conclude reasonable minds could reach only one conclusion that the defendants did not continuously represent Riemers after the premarital agreement was signed and after Riemers pled guilty to the criminal charges. We therefore conclude the continuous representation rule does not toll the running of the statute of limitations for Riemers’ malpractice action against Simonson and Om-dahl.

IV

[¶ 19] Riemers argues his attempted malpractice action against these defendants in February 2003, was dismissed “without prejudice,” and the application of the statute of limitations to this later action would deny him his state constitutional right to a remedy for his injury. Riemers briefly raised this issue in the district court in his brief opposing the defendants’ motion for summary judgment.

However, in both the district court and this Court, Riemers has not supported his state constitutional claims with any citations to relevant legal authority. We have said an argument may be meritless without supportive reasoning or citation to relevant authority, and a party waives an issue by not providing supporting argument. Interest of T.T., 2004 ND 138, ¶ 20, 681 N.W.2d 779; Haley v. Dennis, 2004 ND 96, ¶ 19, 679 N.W.2d 263. We conclude Riemers’ argument on this issue is meritless.

V

[¶ 20] Riemers argues the doctrine of equitable tolling tolls the statute of limitations on his claims against Simonson and Omdahl.

[¶ 21] Riemers did not raise this issue in the district court and is precluded from raising it for the first time on appeal. Gange v. Clerk of Burleigh County Dist. Court, 429 N.W.2d 429, 432 n. 3 (N.D. 1988).- Moreover, this Court has never adopted the doctrine of equitable tolling. See Kimball v. Landeis, 2002 ND 162, ¶24, 652 N.W.2d 330; Reid v. Cuprum SA, de C.U., 2000 ND 108, ¶16, 611 N.W.2d 187. In Reid, at ¶ 10, yre cited Addison v. State, 21 Cal.3d 313, 146 Cal. Rptr. 224, 578 P.2d 941, 943-44 (1978), for the California formulation for equitable tolling, which requires a plaintiff to satisfy three criteria for application of the doctrine: 1) timely notice, 2) lack of prejudice to the defendant, and 3) reasonable and good-faith conduct by the plaintiff.

[¶ 22] In Reid, 2000 ND 108, ¶ 15, 611 N.W.2d 187, we said “Addison and subsequent California decisions have ■ said the equitable tolling doctrine operates to protect the claim of a plaintiff who has several legal remedies and, reasonably and in good faith, pursues one of the remedies thereby tolling the limitation for the other remedies.” We said the plaintiffs’ failure to commence their action against the defendant, a foreign corporation with no registered agent in North Dakota and its principal place of business in Mexico, within the statute of limitations was not the result of their timely pursuit of one of several other available legal remedies which may have tolled the statute of limitations for their action. Id. at ¶ 16. Rather, we concluded the plaintiffs’ failure to commence their action within the statute of limitations resulted from their failure to effectuate timely service of process on the defendant in Mexico. Id. We concluded the plaintiffs’ failure was the result of their imprudent legal practice, and their conduct was not reasonable. Id.

[¶ 23] Even if we were to adopt the equitable tolling doctrine in this case, Riemers’ failure to commence his action against the defendants within the statute of limitations was not the result of his timely pursuit of one of several other available legal remedies which may have tolled the statute of limitations. Rather, as in Reid, 2000 ND 108, ¶ 16, 611 N.W.2d 187, Riemers’ failure to commence his action within the statute of limitations resulted from his failure to effectuate timely service of process on the defendants. We therefore conclude the equitable tolling doctrine would not apply to Riemers’ claims.

VI

[¶ 24] We affirm the summary judgment.

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