author: MINGE, Judge.

text:
    In re the ESTATE OF Norma Jean BONDE, Decedent.
    No. A04-784.
    Court of Appeals of Minnesota.
    March 29, 2005.
    Debra J. Klatt, Stephen H. Munsten-teiger Law, Anoka, MN, for appellant Allan Bonde.
    David K. Nightingale, Bernick and Lif-son, P.A., Minneapolis, MN, for respondent Lori Bogren.

      Considered and decided by RANDALL, Presiding Judge; MINGE, Judge; and WRIGHT, Judge.
   OPINION

MINGE, Judge.

Appellant challenges the district court’s order relying on the property tax definition of homestead to classify decedent’s Coon Rapids property as a homestead. We reverse.

FACTS

Decedent Norma Bonde died intestate on August 3, 2002. Her husband, Allan Bonde, and decedent’s two children from her first marriage survived her. Allan Bonde is the appellant in this case; the respondent is decedent’s daughter, Lori Bogren. Decedent and her first husband owned and resided in a home in Coon Rapids. At the time of her marriage to appellant in 1978, decedent was the fee owner of the Coon Rapids property and was living there with her two children. After their marriage, decedent moved into appellant’s residence in East Bethel, Minnesota. She moved some of her furniture to the East Bethel property and left some at the Coon Rapids property. Until 1981, no one occupied the property in Coon Rapids. In 1981, decedent’s son moved into the Coon Rapids residence and resided there until the mid-1980s. After he left, respondent moved into the Coon Rapids property and has continuously resided there.

After moving into the East Bethel residence, decedent visited the Coon Rapids house to see her children and help with general maintenance, including shoveling the snow and mowing the lawn. Decedent paid the utility bills and property taxes and collected rent from her children. Because decedent’s daughter lived there, Anoka County classified the Coon Rapids property as “homestead” for property tax purposes pursuant to Minn.Stat. § 273.124, subd. 1(c) (2004).

Following decedent’s death, appellant filed a petition for formal adjudication of intestacy, the determination of heirs, and appointment of personal representative. In this petition, appellant classified the Coon Rapids property as “other real estate” as opposed to a homestead. The district court appointed appellant personal representative and he prepared an inventory of decedent’s assets, which included $200,000 for the Coon Rapids property, approximately $50,000 in stocks, and approximately $12,000 for personal property, totaling approximately $262,000. Based on this inventory and pursuant to the law of intestate succession, appellant would receive both the first $150,000 of assets and one-half of the remaining estate, a total of approximately $206,000. MinmStat. § 524.2-102(2) (2004) (the intestate share of a decedent’s surviving spouse is the “first $150,000, plus one-half of any balance of the intestate estate ... if one or more of the decedent’s surviving descendents are not descendents of the surviving spouse”). Respondent objected, claiming that pursuant to Minn.Stat. § 273.124, subd. 1(c), the Coon Rapids property should be classified as a homestead and that it should descend pursuant to Minn. Stat. § 524.2-402(a)(2) (2004). Under this statute appellant, as surviving spouse, would receive a life estate in the homestead (the Coon Rapids property) and decedent’s children would receive the remaining interest. See id.

Appellant disallowed respondent’s claim to reclassify the Coon Rapids property as a homestead. Respondent petitioned the district court requesting that it set aside the unsupervised administration of decedent’s estate and amend the inventory to classify the Coon Rapids property as a homestead. The district court granted respondent’s petition. This appeal followed.

ISSUES

I. Did the district court err in adopting the property tax definition of a homestead for purposes of intestate succession?

II. Is the Coon Rapids property decedent’s homestead for determining intestate succession?

ANALYSIS

The reviewing court need not defer to the district court’s application of the law when the facts are not in dispute. Am. Nat’l Gen. Ins. Co. v. Solum, 641 N.W.2d 891, 895 (Minn.2002); State ex rel. Morrow v. LaFleur, 590 N.W.2d 787, 791 (Minn.1999). Questions of law, including the interpretation of statutes and case law, are reviewed de novo. Hubred v. Control Data Corp., 442 N.W.2d 308, 310 (Minn.1989); Bol v. Cole, 561 N.W.2d 143, 146 (Minn.1997).

I.

The first issue is whether the district court erred in relying on the property tax code to determine whether the Coon Rapids property is decedent’s homestead for purposes of intestate succession. The statute providing for intestate passage of a homestead states in pertinent part:

(a) if there is a surviving spouse, the homestead, including a manufactured home which is the family residence, descends free from any testamentary or other disposition of it to which the spouse has not consented in writing or as provided by law, as follows:
(2) if there are surviving descendants of decedent, then to the spouse for the term of the spouse’s natural life and the remainder in equal shares to the decedent’s descendants by representation.

Minn.Stat. § 524.2-402 (2004). While the probate code uses the term “homestead,” it is not defined in the probate chapters of the statutes. See Minn.Stat. §§ 524.1-101-.8-103 (2004), Minn.Stat. §§ 525.011-.95 (2004). Minnesota cases dealing with the descent of homestead property have looked to debtor-creditor law, especially section 510.01, for guidance in defining homestead and related issues. See In re Estate of Riggle, 654 N.W.2d 710, 714 (Minn.App.2002); Cleys v. Cleys, 363 N.W.2d 65, 70 (Minn.App.1985). In Rig-gle, this court examined whether the decedent had abandoned his homestead and if not, whether a vacant parcel owned by the decedent adjacent to a parcel upon which the decedent and surviving spouse had built their residence was part of the homestead. 654 N.W.2d at 713-14. The court relied heavily on both debtor-creditor statutory and case law in determining that the decedent had not abandoned the homestead and that the vacant parcel was part of the homestead. Id. at 714. Similarly, in Cleys this court applied the homestead definition from the debtor-creditor statute despite appellants argument that the “ ‘debtor-creditor view’ [ ] is not applicable to this case.” 363 N.W.2d at 70.

In the present case, the district court relied on the property tax statute’s definition of homestead in Minn.Stat. § 273.124 (2004) and concluded that the Coon Rapids property was a homestead because the county classified the property as a homestead for property tax purposes. According to this statute, property is a homestead for tax purposes if it is “[rjesidential real estate that is occupied and used for the purposes of a homestead by its owner” or “by a relative of the owner.” Minn.Stat. § 273.124, subd. 1(a), (c). Since most people have several relatives who could qualify, if the decedent owned multiple residential properties, under the property tax law several residential properties owned by one person could be classified as “homestead” for purposes of real estate taxation. See id.

Minnesota’s debtor-creditor homestead exemption statute states that property can only be classified as a homestead if the property is “owned and occupied by a debtor as the debtor’s dwelling place.” Minn.Stat. § 510.01. Classifying several separate properties as homestead for probate purposes is incompatible with the underlying rationale of the statute that “the surviving spouse and children have an emotional attachment to their home and a strong economic interest in either its continued occupancy or its availability as an asset.” Riggle, 654 N.W.2d at 714.

The purpose of the debtor-creditor statute more closely parallels the objective of the probate code provisions for descent of the homestead; both are designed to provide for and preserve a single homestead for the spouse and children. Holden v. Farwell, Ozmun, Kirk & Co., 223 Minn. 550, 558, 27 N.W.2d 641, 646 (1947); Tomlinson v. Kandiyohi County Bank, 162 Minn. 230, 234, 202 N.W. 494, 495 (1925). Additionally, both the law providing for intestate succession and the debtor homestead-exemption statutes involve the protection of the homestead property from claims and debts. Cf. Minn.Stat. § 524.2-402(c); Minn.Stat. § 510.01. The real estate tax code may be intended to extend the homestead tax advantage to the relatives occupying the property. The decedent, as the owner, may be the nominal beneficiary. The tax policies use the homestead concept for purposes of tax equity that do not have a parallel function in the area of intestate succession.

We conclude that the district court erred in applying the tax code definition of homestead and that the courts should look to debtor-creditor law for guidance in interpreting the descent-of-homestead statute.

II.

The next issue is whether the Coon Rapids property should be considered decedent’s homestead under Minn.Stat. § 524.2-402(a)(2). Whether the property is a homestead involves a mixed question of law and fact. See Riggle, 654 N.W.2d at 714 (finding the determination of whether homestead had been abandoned and therefore included or excluded from decedent’s estate was a mixed question of law and fact). Here the parties stipulated to the facts, and therefore this court may, without deferring to the district court, review the legal issue based on those stipulated facts. See Hubred, 442 N.W.2d at 310.

The court in Cleys stated that property is the homestead if “the ownership and occupancy affords a significant ‘community connection’ which gives reason to believe that preservation of that connection will make the debtor and his or her family better able to be self-sustaining.” 363 N.W.2d at 70. The Cleys court found that resort property, where the decedent resided during the tourist seasons, was decedent’s homestead, even though he spent the rest of the year in another state. Id. at 70-71. The court based its determination on the following facts: decedent occupied the resort residence for a substantial part of the year, decedent maintained personal effects at the resort throughout the year, decedent was living at the resort until he entered the hospital where he died, and decedent declared in a deed and attempted conveyance that the resort was his homestead. Id. at 71.

The case before us bears little resemblance to Cleys. Here, unlike in Cleys, the decedent had not resided in the Coon Rapids home for over twenty years, not even seasonally. Aside from a few furnishings, decedent kept her personal effects at the East Bethel residence where she had lived with appellant since 1978. Decedent’s visits to see her children and assist in a few chores reflect her interest in the property as the owner and her interest in her children; the visits do not constitute occupancy for purposes of homestead classification. Therefore, the Coon Rapids property should be classified as non-homestead for probate purposes and pass as “other real estate” for purposes of intestate succession.

DECISION

The district court erred by applying the property tax definition of homestead in determining intestate succession of decedent’s Coon Rapids property. That property is not homestead and should pass as “other real estate” pursuant to the intestacy statutes.

Reversed.

      . The debtor homestead exception permits homestead treatment for more than one tax parcel in undeveloped areas where the multiple neighboring parcels are occupied and treated as one larger homestead unit. Minn. Stat. § 510.02 (2004); Brixius v. Reimringer, 101 Minn. 347, 348-49, 112 N.W. 273, 273-74 (1907) (holding rule for determining whether homestead includes more than one tax parcel is whether the parcels are occupied and cultivated as one unified parcel of land); Riggle, 654 N.W.2d at 716-17 (finding vacant parcel that adjoined parcel containing family dwelling was part of the main homestead). However, the debtor homestead definition would not allow multiple residences in different locations to be included in the homestead exemption.

      . We note that even renters are accorded a quasi homestead benefit for property tax purposes. See Minn.Stat. § 290A.04 (2004).


source: Caselaw Access Project

license: Public Domain

text:
    Lynn C. MAKI, petitioner, Respondent, v. Karl J. HANSEN, Appellant.
    No. A04-1339.
    Court of Appeals of Minnesota.
    March 31, 2005.

      J. Victor Lager, Law Office of J. Victor Lager, Virginia, MN, for respondent.

      Mary I. Johnson, Johnson Law Firm, P.A., Virginia, MN, for appellant.
    Considered and decided by RANDALL, Presiding Judge; MINGE, Judge; and WRIGHT, Judge.
   OPINION

MINGE, Judge.

Appellant Karl J. Hansen challenges the district court’s decision to review a child-support magistrate’s decision and to continue his child-support obligation. Appellant argues the district court lacked jurisdiction to hear respondent Lynn C. Maki’s motion for review because respondent’s motion for review was served improperly and because respondent did not act to extend appellant’s child-support obligation before the child reached the age of 20. Appellant also challenges the district court’s denial of his claim for a refund of child-support overpayment. We affirm in part, reverse in part, and remand for determination of whether the parties’ son is capable of self-support and, if so, a refund of overpayments.

FACTS

Appellant and respondent are the parents of a son who has Down’s Syndrome. Their son was born on July 3, 1982, and was raised by and lives with respondent. The parties were never married. In 1983, appellant was ordered to pay child support to respondent. The child attended secondary school until the spring of 2003, just prior to turning 21. Although no motion was made or action commenced to continue support, the St. Louis County Child Support Collections Division continued to withhold child-support payments from appellant’s income.

In June 2003, appellant moved to terminate his child-support obligation as of his son’s 20th birthday and for a refund of child support collected from him since July 2002. Respondent objected. On July 21, 2003, the child-support magistrate (CSM) found that respondent had failed to move to extend appellant’s child-support obligations past the statutory date of normal emancipation, that respondent had failed to provide any medical evidence or verification of her assertion that the parties’ son is incapable of supporting himself, and that the issue of the child’s disability would not be addressed. The CSM concluded that the burden of establishing disability was on respondent as the obligee and that unless extended, the obligation automatically terminated on the son’s 20th birthday as a matter of law. The CSM then granted appellant’s request that his child-support obligation terminate effective July 3, 2002. The district court administrator sent a copy of the CSM’s order and a document entitled “Notice of Filing of Order and Right to Review or Appeal” to both parties. The document, which recites that it was approved by the Conference of Chief Judges, explained

If you decide to request a review, you must do ALL of the following on or before the following date: August 18, 2003.

(If you fail to complete a, b, c, and d as listed below by this date, your request will be denied):

a. Serve a copy of the “Motion for Review” on each of the other parties, including the county child support agency by U.S. mail or by personal service;
b. File with the Court Administrator the original “Motion for Review”;
c. File with the Court Administrator proof of service of the motion upon each of the other parties and the county child support agency;
d. Pay any filing fees to the Court Administrator[.]

The document also explained that the parties had a right to appeal the CSM’s order to the court of appeals within 60 days of the date the notice was mailed.

On August 15, 2003, respondent filed a combined motion for review with the district court, cryptically requesting review of the child’s disability and ability to support himself. Although ambiguous, the motion appears to request continued child support. Respondent personally mailed the motion to appellant’s home; she did not serve the documents on or send a copy of the combined motion to appellant’s attorney. Appellant argued that respondent’s motion should be dismissed because it was not served on his attorney or mailed by the sheriff or other neutral person, as required by Minn. R. Gen. Pract. 355.01, subd. 2, and because respondent had never filed a motion to extend support before the child reached the age of 20.

The district court twice continued a hearing on respondent’s claim to allow her time to properly serve appellant and file proper motions. On March 8, 2004, when respondent had still failed to properly serve or file a new motion, the district court dismissed respondent’s combined motion for review without prejudice.

On March 22, 2004, respondent filed another motion with the district court. Respondent moved the district court to reverse the CSM’s order and restore appellant’s child-support obligations. Appellant argued that the district court did not have jurisdiction to review respondent’s motion because, by law, appellant’s child-support obligation ended when the parties’ son reached the age of 20. Appellant further argued that the district court did not have jurisdiction to consider the matter because respondent had not properly appealed or sought review of the CSM’s decision and the time for seeking review had expired. On June 25, 2004, the district court ruled that it had continuing jurisdiction and the parties’ son was still a “child” under Minn.Stat. § 518.54, subd. 2 (2002), unless otherwise demonstrated. The district court also stated that respondent had the right to bring her motion because the parties’ 1993 stipulated order regarding support did not define “child.” The district court denied respondent’s motion to simply extend child support and ordered that an evidentiary hearing be scheduled. The district court also denied appellant’s motion for a money judgment of overpaid support and attorney fees.

On July 9, 2004, the district court judge sent both parties a letter stating he had recently discovered that in 1990 he had represented respondent. The judge determined that he would recuse himself from further participation in the case unless both parties filed a waiver. Appellant did not agree to waive the judge’s disqualification and asked that the judge be removed from the case. Another judge was assigned to preside over any future hearings.

Appellant seeks review of the district court’s March 8, 2004, order dismissing the case without prejudice. In an interlocutory appeal, appellant also seeks review of the district court’s June 25, 2004, order setting a hearing on child support and denying his motion for refund of child support paid after the child turned 20.

ISSUES

I. Did the district court err by dismissing respondent’s August 15, 2003 combined motion for review without prejudice?

II. Did the district court lack jurisdiction to extend appellant’s support obligation?

III. Is respondent obligated to repay appellant the support paid after their child turned 20?

ANALYSIS

I.

The first issue is whether the district court erred by dismissing respondent’s August 15, 2003 combined motion for review without prejudice. Appellant argues the motion should have been dismissed with prejudice because respondent did not properly serve and file a motion seeking review of or appealing the CSM’s order and the time for seeking review has expired.

Whether service of process is proper is a question of law, which we review de novo. Turek v. A.S.P. of Moorhead, Inc., 618 N.W.2d 609, 611 (Minn.App.2000), review denied (Minn. Jan. 26, 2001). The rules for serving documents in child-support cases require that “[i]f a party ... is represented, by an attorney ..., service shall be made upon the party’s attorney.” Minn. R. Gen. Pract. 355.01, subd. 2. Additionally, “[sjervice by mail shall be made only by the sheriff or by any other person who is at least 18 years of age who is not a party to the proceeding.” Minn. R. Gen. Pract. 355.02, subd. 2.

Parties are expected to follow the requirements for service of process and failure to do so can result in dismissal of a claim. See Nieszner v. St. Paul Sch. Dist. No. 625, 643 N.W.2d 645, 648, 650 (Minn.App.2002). However, the rules of service are not always strictly construed. The Minnesota Supreme Court has stated that where personal service is required but service is made by mail and the party to be served actually receives the documents, service is effective. State v. Pierce, 257 Minn. 114, 115-16, 100 N.W.2d 137, 138-39 (1959). Similarly, strict enforcement of service requirements was implicitly rejected in State by Johnson v. Scientific Computers, Inc., 388 N.W.2d 748 (Minn.1986). In Scientific Computers, this court had ruled that serving a party’s counsel instead of the party, as required by the rules of service for writs of certiorari, did not constitute service on the party and discharged the writ. State v. Scientific Computers, Inc., 384 N.W.2d 560, 561 (Minn.App.1986). The Minnesota Supreme Court reversed, reinstated the writ, and remanded the case for consideration of the merits, implicitly rejecting the reasoning that service on counsel was to be strictly construed. State by Johnson, 388 N.W.2d at 748.

Here, respondent served appellant by sending a copy of the combined motion for review by mail to appellant. Appellant received the motion and took it to his attorney. The case before us is not as dramatic as Pierce. In Pierce, actual receipt of service by mail was allowed in lieu of personal service. 257 Minn, at 115-16, 100 N.W.2d at 138-39. In our case, respondent personally mailed notice to appellant instead of having a neutral person depositing notice in the mail addressed to appellant’s attorney. In our case, appellant received a copy of respondent’s motion, had notice of the issues respondent was raising, delivered the material to his attorney, and had the opportunity to be heard by filing a response to respondent’s motion. While we emphasize the importance of following the procedures for service set forth in the rules, we note that although appellant claims he filed responsive documents late, he was not actually prejudiced by improper service.

We also observe that in this proceeding, when respondent received a copy of the CSM’s order, she also received a form entitled “Notice of Filing of Order and Right to Review or Appeal.” This form was sent by the court administrator, recited that it was approved by the Conference of Chief Judges, and described how to obtain review of the CSM’s order. The form’s instructions on service do not identify the requirements of Minn. R. Gen. Pract. 355.01, subd. 2, for proper service. Respondent complied with all the steps listed on the form. Based on all the circumstances in this case, we determine here that the rules of service should not be so strictly applied as to result in dismissal of her claim and that respondent’s initial service of her combined motion for review was effective. Because the service of the combined motion was effective and because the combined motion included a request that the district court determine whether the child was disabled and incapable of self-support, we conclude that it raised the issue of emancipation and child support and the district court improperly dismissed respondent’s initial request for review. In any event, because the CSM did not purport to address the issue- of the son’s disability, because the district court dismissed the request for review without prejudice, and because the respondent’s subsequent motion to the district court has raised the issues of disability and support, we conclude that these issues were properly presented to the district court.

II.

The second issue is whether respondent’s request for continued child support was timely when the request was made after the parties’ son reached the statutory age of emancipation. This is a question of law and we review questions of law under the de novo standard. Alpha Real Estate Co. of Rochester v. Delta Dental Plan of Minn., 664 N.W.2d 303, 311 (Minn.2003).

The general rule in Minnesota is that the obligation to pay child support terminates when the child is emancipated. The statutes provide that:

[ujnless a court order provides otherwise, a child support obligation in a specific amount per child terminates automatically and without any action by the obligor to reduce, modify, or terminate the order upon the emancipation of the child as provided under section 518.54, subdivision 2.

Minn.Stat. § 518.64, subd. 4a(a) (2004). The cross-referenced statute provides that a person is a child as defined by law, if the person is “an individual under 18 years of age, an individual under age 20 who is still attending secondary school, or an individual who, by reason of physical or mental condition, is incapable of self-support.” Minn.Stat. § 518.54, subd. 2 (2004). As a result, the statutes imply that an individual incapable of self-support continues to be an unemancipated child for support and maintenance purposes. See Minn.Stat. §§ 518.54, subds. 1, 2, .64, subd. 4a(a) (2004).

Respondent argues that the district court could extend appellant’s child-support obligation because the parties’ son is incapable of supporting himself. However, whether support would be ordered is not at issue here. The issue we face is whether respondent’s motion for continued support was timely.

Appellant and respondent both quote discussion in McCarthy v. McCarthy, 301 Minn. 270, 222 N.W.2d 331 (1974), as relevant in determining the timeliness of respondent’s motion. In discussing whether a minor child with cerebral palsy would be able to support himself after he reached the statutory age of emancipation, the Minnesota Supreme Court stated in McCarthy that:

[i]t is apparent that attention was not directed to this aspect of the case [whether the court’s authority to require child support may extend past the statutory date of the child’s emancipation]. However, inasmuch as the trial court has continuing jurisdiction to deal with this matter through its power to modify its decrees regarding child support and alimony on the basis of a change in circumstances, we feel that it is sufficient to merely apprise the parties and the trial court of the situation to facilitate reevaluation of the circumstances on or before the date upon which [the child] attains majority.

Id. at 274-75, 222 N.W.2d at 334 (emphasis added).

For several reasons, we conclude that McCarthy does not establish a rule that a disabled child loses all rights to continued parental support unless the request for continued support is made prior to reaching the age of 18 (or 20 for persons still in secondary school). First, the statement in McCarthy is dicta and was made in the context of explaining to the district court and to the parties that the district court could not determine at the time the child was only 14 years old whether the child would be capable of supporting himself when he reached the age of 18, and that they should evaluate the child’s status when the child was closer to the age of majority. Id. at 273-75, 222 N.W.2d at 333-34. The case suggests that motions made before the child reaches the age of majority are timely.

Second, McCarthy did not purport to interpret the language of the Minnesota statutes that a child-support obligation continues until the child is emancipated and that a person who is unable to support himself due to a physical or mental condition is defined as a “child.” See Minn.Stat. §§ 518.54, subd. 2, .64, subd. 4a(a). We are reluctant to depart from what appears to be the plain language in the statutes on the basis of dicta in a court opinion.

Third, in State ex rel. Jarvela v. Burke, this court previously addressed this issue as follows:

Appellant asserts that Burke lacked standing to bring a motion for modification because her rights of legal and physical custody over [the parties’ son] automatically terminated on his 18th birthday. He cites no case law to support his assertion, and the argument conflicts with the governing statute. By law, “child” specifically includes in its statutory definition individuals “who, by reason of physical or mental condition, [are] incapable of self-support.” Minn. Stat. § 518.54, subd. 2 (2002). Since it is undisputed that [the parties’ son] is incapable of self-support, he remains a child under statute, and respondent retains ongoing legal custody over him. Respondent had standing to bring the present modification motion.

678 N.W.2d 68, 72 (Minn.App.2004). In Jarvela, we determined that the district court retains jurisdiction to modify child-support orders beyond the time a child reaches the age of majority if the child is incapable of self-support. Id. at 72-73.

Fourth, to hold that motions made after a child’s birthday are untimely and cannot be addressed will, in cases where a child-support recipient’s motion to extend support is made after the child’s birthday, require the district court to penalize the child for the parent’s mistake in not making a timely motion. Such a result (1) is harsh; (2) is suspect in light of the overriding principle in family law that the courts should act in the child’s best interests; and (3) could create a “trap for the unwary,” particularly in cases where the child support recipient is pro se. See, e.g., Tammen v. Tammen, 289 Minn. 28, 30, 182 N.W.2d 840, 842 (1970). In Tammen, the supreme court stated,

The basic right of minor children to support by the parents may not be affected by any agreement between the parties or third persons. Courts will not be bound by any agreement between parents affecting the rights of minor children with respect to support, but will be controlled by the welfare of the child as the paramount consideration.

Id. If a child’s right to support cannot be limited by an agreement between the child’s parents, the failure of a parent to seek review should not bind the child’s right to receive support.

We conclude respondent’s failure to move to extend the child-support order before the parties’ son turned 20 does not prevent the district court from considering her motion now. The CSM stated that because respondent did not move to extend appellant’s child support obligation prior to the hearing before the CSM, he would not address the issue of the child’s disability. The district court stated in its order that it was “without sufficient information to determine whether [the parties’ son] is incapable of self-support due to his physical or mental condition.” The district court cannot extend the duration of appellant’s child-support obligation unless the district court finds there is a demonstrated inability of the parties’ son to be self-supporting. See Borich v. Borich, 450 N.W.2d 645, 648 (Minn.App.1990). Because the record is not clear as to whether the parties’ son is capable of self-support, we remand the issue to the district court for further proceedings and a determination of whether the child is emancipated, considering all of the surrounding circumstances.

III.

The third issue is whether appellant is entitled to a money judgment for a refund of wrongfully withheld child support based on the CSM’s order. The order, issued on July 21, 2003, stated that “[t]he obligations to pay ongoing child support, medical support and childcare reimbursement are terminated due to emancipation of the child effective July 3, 2002, as a result of his attaining the age of 20 years.” Thus, the CSM terminated appellant’s child-support obligation retroactively. Respondent admits the CSM’s order entitled appellant to a money judgment but argues the CSM’s order was wrong because the parties’ child is not emancipated. The district court denied respondent’s motion for a money judgment.

Because we conclude that the district court must determine whether the child is capable of self-support and remand the issue to the district court for further consideration, we must reverse the district court’s denial of respondent’s motion for a money judgment and direct the district court to reconsider the motion after determining whether the parties’ son is capable of self-support.

Appellant argues further that the district court judge erred by failing to recuse himself before entering the June 2003 order. Because the district court has already assigned a different judge to preside over further hearings in this matter, we do not reach the issue of whether the judge erred by failing to recuse himself.

DECISION

Because respondent served her motion for review in accordance with instructions in a form furnished by the district court and because appellant received respondent’s motion and appellant was not prejudiced, we determine that respondent effectively filed her motion for review. We also conclude that respondent’s motion to extend appellant’s child-support obligation was timely, and we remand to the district court for a determination of whether the parties’ son is incapable of self-support by reason of physical or mental condition. Because the district court must now consider whether the parties’ son is emancipated, the district court’s denial of appellant’s motion for a refund of child-support overpayment is reversed and remanded for consideration pending determination of emancipation. We do not reach the issue of whether the judge erred by failing to recuse himself.

Affirmed in part, reversed in part and remanded.

      . Respondent filed this combined motion for review by filling out a standardized form, which was also furnished by the court administrator, and recites that it is approved by the Conference of Chief Judges.

      . A form distributed by the court should conform with the Minnesota Rules of General Practice. Many parties appearing before CSMs are pro se and will rely on this form supplied by the district court. We urge that the service requirements in this form be addressed.

      . Such support may be ordered if the parent seeking to extend support establishes that his or her child is unable to support himself or herself. McCarthy v. McCarthy, 301 Minn. 270, 274, 222 N.W.2d 331, 334 (1974). Whether an individual is emancipated depends on the facts and circumstances of each case. In re Fiihr, 289 Minn. 322, 327, 184 N.W.2d 22, 25 (1971); Streitz v. Streitz, 363 N.W.2d 135, 137 (Minn.App.1985). The fact that a child has Down's Syndrome does not mean that the child is necessarily incapable of supporting himself or herself or that child support will automatically be extended beyond the time the child reaches the age of majority. See, e.g., Hoppenrath v. Cullen, 383 N.W.2d 394, 395, 397 (Minn.App.1986) (refusing to extend a parent's child-support obligation to a child with Down's Syndrome past the age of emancipation as premature because the child was only four years old and the court could not determine whether the child would be able to support himself later in life).

      . While we do not resolve the issue, we note that if the district court concludes the parties’ son is not emancipated, the circumstances provide an unusual situation in which to apply the child support guidelines because of the child’s age, possible earnings, and other sources of support.


author: CRIPPEN, Judge.

text:
    STATE of Minnesota, Respondent, v. Henry John MARTINEZ, Jr., Appellant.
    No. A04-546.
    Court of Appeals of Minnesota.
    April 5, 2005.

      Mike Hatch, Attorney General, St. Paul, MN; and Amy Klobuehar, Hennepin County Attorney, Jean E. Burdorf, Assistant County Attorney, Minneapolis, MN, for respondent.
    Joseph S. Friedberg, Minneapolis, MN; and Lisa Lodin Peralta, Minneapolis, MN, for appellant.
    Considered and decided by KLAPHAKE, Presiding Judge, PETERSON, Judge, and CRIPPEN, Judge.
   OPINION

CRIPPEN, Judge.

Appellant John Henry Martinez, Jr. was convicted of fifth-degree criminal sexual conduct based on an incident involving his adult stepdaughter. Appellant challenges (1) the admission of two incidents of prior bad acts as overly prejudicial; (2) the admission of two statements he asserts are hearsay; and (3) a jury instruction. We affirm.

FACTS

Appellant was charged after his stepdaughter reported to police that he had touched her inappropriately. Appellant was convicted after a jury trial. During trial, the district court admitted several evidentiary items that appellant now challenges as inadmissible bad acts evidence.

The state sought to admit four prior bad acts by appellant. The prosecutor argued at the pretrial hearing that the prior bad acts were admissible under Minn. R. Evid. 404(b) to show appellant’s intent, common scheme and plan, absence of mistake or accident, and lack of fabrication under State v. Wermerskirchen, 497 N.W.2d 235 (Minn.1993). The district court admitted two incidents of prior bad acts because the conduct was either the “same” or similar, involving “unwanted sexual touching that was done ... without the consent, and with the making the other party very uncomfortable. ...”

The district court also refused to grant appellant’s request for a limiting instruction that the prior bad acts evidence was admitted for the sole purpose of proving intent. Appellant’s counsel argued that “even though [the district court’s instruction in this matter] is in the jury instruction guide, which to a degree is law, at least advisory law, it is conceptually wrong and it’s legally wrong.” The state responded that appellant had been notified of the issues justifying the offer of the evidence and that, according to commentary in the jury instruction guide, the instruction was purposely worded in general language to avoid injecting argument into a judge’s charge. The court concluded that the jury instruction adequately and correctly stated the law and denied appellant’s request to modify the instruction.

ISSUES

1. Is appellant entitled to the jury instruction that he requested on the purposes for which the jury could use prior bad acts evidence admitted at trial?

2. Did the district court otherwise err in admitting evidence?

ANALYSIS

I.

The refusal to give a requested jury instruction lies within the discretion of the district court and will not be reversed absent an abuse of discretion. State v. Cole, 542 N.W.2d 43, 50 (Minn.1996). “Trial courts are allowed ‘considerable latitude’ in [the] selection of language” for the jury instructions. State v. Gray, 456 N.W.2d 251, 258 (Minn.1990) (quoting Alholm v. Wilt, 394 N.W.2d 488, 490 (Minn.1986)). “[J]ury instructions must be viewed in their entirety to determine whether they fairly and adequately explained the law of the case.” State v. Flores, 418 N.W.2d 150, 155 (Minn.1988).

In State v. DeYoung, 672 N.W.2d 208, 212 (Minn.App.2003), this court held that when a defendant requests an instruction limiting the specific purpose for which Spreigl evidence may be considered, the district court must give the instruction. The DeYoung court concluded that this result was mandated by State v. Broulik, 606 N.W.2d 64 (Minn.2000) in which the Minnesota Supreme Court questioned the rationale behind the relevant CRIMJIG instruction and endorsed the practice of the federal courts, which require a specific limiting instruction when requested. See Broulik, 606 N.W.2d at 68-71.

In Ture v. State, 681 N.W.2d 9, 18-19 (Minn.2004), the supreme court held that where a defendant asked for the Eighth Circuit Model Instruction, which instructed that evidence of prior bad acts was admitted solely for the purposes of proving identity, the district court did not err in denying the request where the evidence was admitted for other purposes along with identity.

Finally, in State v. Babcock, 685 N.W.2d 36 (Minn.App.2004), review denied (Minn. Oct. 19, 2004), this court, on remand, had to determine in another setting whether the district court erred in denying the defendant’s request for a limiting instruction. Babcock requested that the district court instruct the jury on the specific purposes for which it had admitted the bad acts evidence but left the content of the instruction to the discretion of the district court. Id. at 39. This court determined that the district court erred in denying defendant’s request for a limiting instruction. Id. at 42. Unlike the circumstances in Ture, where the request failed to identify all of the purposes for which prior bad acts evidence was admitted, the defendant in Babcock did not make an incomplete request; he only requested that the district court specify to which purposes the bad acts evidence was admitted. Id.

In the case on appeal here, the state notified appellant that it would seek to admit certain bad acts evidence to show intent, common scheme, and absence of mistake, all in respect to appellant’s state of mind, but also reported that the state would seek to admit the bad acts evidence under Wermerskirchen, which allows admission in cases where a defendant’s theory of the case is that the victim fabricated or misperceived the conduct giving rise to the offense. See State v. Wermerskirchen, 497 N.W.2d 235, 242 (Minn.1993) (holding that where defendant contended an accusation was a “fabrication or a mistake in perception by the victim,” bad act evidence is proper to show the veracity of the testimony if the district court is satisfied that other conduct is sufficiently relevant to charged crime). Appellant’s request on intent was incomplete. The record indicates that the evidence was admitted not only for the purpose of showing intent, common scheme, and absence of mistake, but under Wermerskirchen as well. As in Ture, 681 N.W.2d 9, the district court did not err in denying appellant’s incomplete request for a more particular instruction.

II.

The reviewing court will not reverse the district court’s admission of evidence of other crimes or bad acts unless an abuse of discretion is clearly shown. State v. Scruggs, 421 N.W.2d 707, 715 (Minn.1988); see also State v. Kennedy, 585 N.W.2d 385, 389 (Minn.1998) (characterizing evidence of other crimes or bad acts as “Spreigl” evidence). To prevail, an appellant must show the error and the prejudice resulting from the error. State v. Loebach, 310 N.W.2d 58, 64 (Minn.1981).

Appellant challenges the admission of two prior incidents: one involving appellant’s other adult stepdaughter, and the other involving a male subordinate at work. The district court evaluated the two incidents separately using the rubric of Minn. R. Evid. 404(b). The court found the two incidents to be the “same” or similar for purposes of the rule at least insofar as the two acts and the alleged conduct in question all involved “unwanted sexual touching that was done ... without the consent, and with the making the other party very uncomfortable....” After fully reviewing the relevant evidence, we conclude that this district court finding is adequately supported by the record. The court’s determination that the prejudice to appellant in proof of his prior acts was not greater than its evident probative value does not fall outside the scope of the court’s broad discretion.

Because we conclude that the district court did not abuse its discretion in admitting the bad act evidence under Spreigl standards, we do not review the state’s alternative claim that both reference to the prior acts and proof of their detail could have properly been admitted as a rebuttal to appellant’s efforts to show the bias and fabrication of the accuser.

Appellant also challenges two statements as inadmissible hearsay. During cross-examination, the victim testified that the reason she disliked appellant immediately upon knowing him was because her aunt and sister had told her about several bad acts in his past. If this statement had been offered to prove the truth of the matter asserted, that is, that the incidents as told to the stepdaughter were true, it would be hearsay, and likely inadmissible. But the statement was not offered for the truth of the matter asserted; it was offered to show the victim’s beliefs about appellant. It is not hearsay evidence and was properly admitted.

During direct examination of the victim’s adult sister, the witness testified that the victim told her that appellant made inappropriate comments of a sexual nature. This challenged statement involves hearsay within hearsay. “Hearsay included within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule provided in [the] rules.” Minn. R. Evid. 805.

Appellant’s statements to the victim are admissions of a party-opponent, and are non-hearsay under Minn. R. Evid. 801(d)(2). The victim’s statement to her sister would be hearsay if offered for the truth of the matter asserted — that appellant made inappropriate comments of a sexual nature. But Minn. R. Evid. 801(d)(1) defines prior statements by a witness as non-hearsay when the declarant testifies at trial, is subject to cross-examination concerning the statement, and the statement is consistent with the declar-ant’s testimony and helpful to the trier of fact to evaluate the declarant’s credibility. All of the prongs of this rule are met, and the court did not err in admitting the evidence.

DECISION

Because of the multiple subjects to which the state’s bad acts evidence was directed, the district court did not err in refusing to instruct the jury that the evidence regarded only appellant’s state of mind. In addition, the court’s admission of Spreigl evidence and alleged hearsay evidence, viewed according to the applicable rules of evidence, was within the scope of its broad discretion.

Affirmed.

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

      . During jury deliberations, appellant renewed his request for a limiting instruction, arguing that the jury should have been instructed that the prior bad acts evidence was admitted for the purpose of proving intent and absence of mistake. This request was untimely because the jury had already been instructed. Moreover, if the instruction had been made in a timely fashion, the court properly denied the instruction for reasons stated in this opinion.

      . In Broulik, 606 N.W.2d at 71, the supreme court held that the district court did not err by failing to give a limiting instruction because the defendant did not request a limiting instruction at trial. It is evident that the defendant’s failure to request a limiting instruction was a significant factor in the supreme court’s decision that the district court did not abuse its discretion. Id. at 68-69.

      . The parties have not briefed and we do not decide whether a specific instruction would be appropriate in a Wermerskirchen case and if so, how the request for instruction might be made.

      . Other than the similarities between the incidents, the record does not contain a declaration of the district court’s explanation on the relevancy of the specific evidence or its specific expression that the evidence is more probative than prejudicial. We necessarily infer in the district court's deliberation on the similarities of the past and present conduct its reflection on the state's position that the evidence related both to the issue of intent and the fabrication attack on the state's witness. The court's deliberation on the standard of "more probative than prejudicial” is suggested by the court’s additional comments when it excluded other bad acts evidence, its conclusion that evidence of this conduct should be ex-eluded because it was too “highly inflammatory.”


author: LANSING, Judge.

text:
    MARCHANT INVESTMENT & MANAGEMENT CO., INC., Appellant, v. ST. ANTHONY WEST NEIGHBORHOOD ORGANIZATION, INC., et al., Respondents.
    No. A04-900.
    Court of Appeals of Minnesota.
    April 5, 2005.

      Matthew L. Fling, Edina, MN, for appellant.
    Ansis V. Viksnins, DeAnne M. Hilgers, Lindquist & Vennum, P.L.L.P., Minneapolis, MN, for respondents.
    Considered and decided by LANSING, Presiding Judge; WILLIS, Judge; and STONEBURNER, Judge.
   OPINION

LANSING, Judge.

In litigation between a real-estate developer and a neighborhood organization, the district court applied the participation-in-government immunity provided by Minn. Stat. §§ 554.01-.05 (2004) to grant judgment on the pleadings for the neighborhood organization. The developer appeals the judgment as it relates to its defamation claim and the attendant order for attorneys’ fees. Because the developer’s allegations do not clearly and convincingly demonstrate that the neighborhood organization’s statements declare or imply a provably false assertion of defamatory fact, the district court did not err in granting the neighborhood organization partie-ipation-in-government immunity and ordering judgment on the pleadings; we therefore affirm.

FACTS

Marchant Investment & Management Co., Inc. (Marchant) is a real-estate developer that proposed a development project, the River Run Apartment Project, in the Sheridan neighborhood of Northeast Minneapolis. St. Anthony West Neighborhood Organization, Inc. (STAWNO) is a nonprofit organization that, along with other neighborhood organizations, opposed the design of the proposed project.

While Marchant was in the process of obtaining the city’s approval of the project and the necessary permits, Michael Rain-ville, STAWNO’s president, wrote a letter to the Minneapolis Planning Department opposing Marchant’s zoning application and requests for variances. Rainville sent copies of the letter to Marchant, the may- or, the city council, and another development company. The language in the letter that is relevant to this appeal states:

We have met countless times with the developers to inform them of the vision of the Above the Falls Plan and our concerns about having that vision carried out. They have refused to listen to our concerns, especially regarding the height variance, design and the relationship the proposed project has to the Above the Falls Plan.

Marchant’s president, James Bartlett, responded by letter, questioning whether Rainville was speaking for himself or for STAWNO’s board and pointing out inaccuracies in Rainville’s letter. Bartlett said that Marchant had never met with STAW-NO and that STAWNO had not asked for a meeting. He stated that Marchant had met many times with the Sheridan Neighborhood Organization and that Rainville had personally “attended a number of those meetings.” Bartlett also said that, at Rainville’s suggestion, Marchant had met with MEND, an umbrella organization of neighborhood associations, and that Rainville spoke at that meeting.

Three months later Marchant sued STAWNO and its officers and directors, alleging defamation, tortious interference with a prospective business advantage, tor-tious interference with a contract, civil conspiracy, and civil aiding and abetting. Marchant’s complaint specifically refers to Rainville’s letter, the response from Bartlett, and a subsequent letter from Mar-chant to the STAWNO Board of Directors inquiring whether the board had authorized Rainville’s letter. In its answer to Marchant’s complaint, STAWNO also refers to the three letters and their contents and affirmatively alleges that it has discussed the River Run Project several times with Marchant. Among other affirmative defenses, STAWNO asserts immunity for protection of citizens’ participation in government under Minn.Stat. §§ 554.01-.05 (2004).

STAWNO moved under Minn. R. Civ. P. 12.03 and Minn.Stat. § 554.02, subd. 2(3), for judgment on the pleadings on all claims. The district court granted STAW-NO’s motion. On the defamation claim, the court held that Marchant had failed to clearly and convincingly demonstrate that any of the contested statements in the letter conveyed a defamatory meaning and therefore STAWNO was entitled to immunity for its participation in the proceedings. In this appeal, Marchant challenges the district court’s determination on one set of the alleged defamatory statements and also appeals the court’s allowance of attorneys’ fees.

ISSUE

Did the real-estate developer clearly and convincingly establish that the neighborhood organization tortiously defamed the developer by stating or implying a provably false assertion of fact?

ANALYSIS

To protect citizens and organizations from lawsuits that would chill their right to publicly participate in government, Minnesota enacted an anti-SLAPP (Strategic Lawsuits Against Public Participation) statute in 1994. See 1994 Minn. Laws ch. 566 (describing act as “protecting citizens and organizations from civil lawsuit for exercising their rights of public participation in government”). Twenty-three other states have enacted similar statutes, ranging from those that only protect speech related to zoning issues and others that protect the “right to speak in any ‘public forum’ on ‘matters of public concern.’ ” Margaret Graham Tebo, Offended by a SLAPP: As Lawsuits Against Citizens Expand, Countermeasures Are Rolled Out, A.B.A. J., Feb. 2005, at 16, 17.

Minnesota’s statute permits a party to bring a motion to dismiss on the ground that the claim “materially relates to an act of the moving party that involves public participation.” Minn.Stat. § 554.02, subd. 1 (2004). Public participation means “speech or lawful conduct that is genuinely aimed in whole or in part at procuring favorable government action.” Minn.Stat. § 554.01, subd. 6 (2004). The district court must grant a motion to dismiss brought under the act unless the responding party demonstrates, by clear and convincing evidence, that the moving party’s conduct is not immune from liability because the conduct constitutes a tort or violation of a constitutional right. Minn.Stat. §§ 554.02, subd. 2(2), (3), 554.03 (2004).

Marchant contends that STAW-NO is not entitled to immunity for the statements in Rainville’s letter because they are tortiously defamatory in stating that STAWNO “met countless times with the developers” and the developers “refused to listen to our concerns.” Because this is an appeal from judgment on the pleadings, our consideration focuses on the pleadings’ allegations. Minn. R. Civ. P. 12.03. We may also consider documents and statements that are incorporated by reference into the pleadings. See Martens v. Minn. Mining & Mfg. Co., 616 N.W.2d 732, 739 n. 7 (Minn.2000) (limiting review of order for dismissal to documents and statements referred to in complaint). All facts alleged in the complaint must be taken as true and all reasonable inferences drawn in favor of the nonmoving party. Bodah v. Lakeville Motor Express, Inc., 663 N.W.2d 550, 553 (Minn.2003).

Applying these principles, the question we must answer is whether the district court erred in ruling as a matter of law that Marchant did not allege facts that would clearly and convincingly show that STAWNO’s statements constitute defamation. To succeed in a claim of defamation, a plaintiff must prove that the defendant made a false and defamatory statement about the plaintiff in an unprivileged communication to a third party and that the statement harmed the plaintiffs reputation in the community. Weinberger v. Maplewood Review, 668 N.W.2d 667, 673 (Minn.2003). We note that, unlike a private plaintiff, a public figure must also prove that the defamatory statement was made with actual malice. See Jadwin v. Minneapolis Star & Tribune Co., 367 N.W.2d 476, 482-83 (Minn.1985) (stating whether plaintiff was public figure, or limited-purpose public figure, is threshold legal issue, which appellate courts review de novo). STAWNO, however, does not assert on appeal that Marchant is a public figure or limited-purpose public figure. For this reason, and because we conclude that STAWNO’s statements are not actionable defamation, we do not address the issue of actual malice.

“Only statements that present or imply the existence of fact that can be proven true or false are actionable under state defamation law.” Schlieman v. Gannett Minn. Broad., Inc., 637 N.W.2d 297, 308 (Minn.App.2001) (citing Milkovich v. Lorain Journal Co., 497 U.S. 1, 18-20, 110 S.Ct. 2695, 2705-06, 111 L.Ed.2d 1 (1990)). “Thus, if it is plain that the speaker is expressing a ‘subjective view, an interpretation, a theory, conjecture, or surmise,’ rather than claiming to be in possession of ‘objectively verifiable facts,’ the statement is not actionable.” Id. (quoting Haynes v. Alfred A. Knopf, Inc., 8 F.3d 1222, 1227 (7th Cir.1993)). Speech that is properly categorized as parody, loosely figurative, or rhetorical is also constitutionally protected to ensure that public debate will not suffer for lack of imaginative expression and because this type of speech cannot be reasonably interpreted as stating actual facts. Milkovich, 497 U.S. at 16-17, 110 S.Ct. at 2704-05.

STAWNO asserts that Rainville’s statements are not defamatory because they are opinion rather than fact. In Milkovich, the United States Supreme Court rejected the artificial dichotomy between “opinion” and “fact.” Id. at 19, 110 S.Ct. at 2706; Weissman v. Sri Lanka Curry House, Inc., 469 N.W.2d 471, 472 (Minn.App.1991) (applying Milkovich to defamation in employment context). Before Mil-kovich, Minnesota applied constitutional protection for speech by relying on a four-part test drawn from Janklow v. Newsweek, Inc., 788 F.2d 1300, 1302-03 (8th Cir.1986), and Ollman v. Evans, 750 F.2d 970, 979 (D.C.Cir.1984). See Huyen v. Driscoll, 479 N.W.2d 76, 79 (Minn.App.1991) (comparing Janklow factors to Mil-kovich decision), review denied (Minn. Feb. 10, 1992). Since Milkovich, this court has stated that the pr e-Milkovich test remains instructive, but Minnesota courts have not identified new considerations in light of Milkovich. See id. at 80 (finding pr e-Milkovich factors applicable because of their similarity to Milkovich formulation).

Federal courts, however, have identified post -Milkovich considerations for determining whether statements present or imply a provably false assertion of fact. See, e.g., Partington v. Bugliosi, 56 F.3d 1147, 1153 (9th Cir.1995) (providing three-part test); see also Jefferson County Sch. Disk No. R-1 v. Moody’s Investor’s Servs., Inc., 175 F.3d 848, 853 (10th Cir.1999) (discussing factors for consideration, including medium, phrasing, and context of statement); Condit v. Dunne, 317 F.Supp.2d 344, 361 (S.D.N.Y.2004) (identifying similar factors). The post-Milkovich formulations examine the statement’s broad context, which includes the general tenor of the entire work and its statements, setting, and format; the specific context and content of the statements, including the use of figurative or hyperbolic language and the reasonable expectations of the audience; and whether the statement is sufficiently objective to be susceptible of being proved true or false. Partington, 56 F.3d at 1153. We find the federal, post-Milkovich considerations instructive and apply them in our determination of whether Marchant alleged facts that show, clearly and convincingly, that STAWNO’s statements constitute defamation.

The two clauses at issue in this appeal appear in two successive sentences in Rainville’s letter. The first is “[w]e have met countless times with the developers” and the second is “[tjhey have refused to listen to our concerns.” We read the two clauses together because they “are part of the full communication that may be considered in determining the defamation claim.” Schlieman, 637 N.W.2d at 308.

Applying Milkovich and the standards developed after Milkovich, we first consider the broad context of the statements. STAWNO sent the letter to a planning department employee, with copies to public officials. The letter addresses issues that were at the center of a heated debate on a proposed neighborhood housing development. In this type of public debate, an audience expects opposing sides to use persuasive force to convince others to adopt their position and is less likely to perceive statements as objective assertions of truth. Additionally, the statements appear in a letter rather than a more formal document. The more personal and informal nature of this letter suggests that the statements represent the subjective concerns and perceptions of the letter writer.

Second, we examine the specific context and content of the statement. In this examination, we consider the extent to which the language is figurative or hyperbolic. Although the first sentence contains a factual assertion that STAWNO met with the developers, the term “countless” is more hyperbolic than precise. Intended for dramatic and persuasive effect, it is not used as an accurate and factual assessment of quantity. Further, the letter does not clearly indicate who met with the developers. It states only that “we” met with the developers. This term is sufficiently ambiguous to confuse Marchant, who commented on its vagueness in its response to STAWNO. In this letter, which the complaint incorporates by reference, Marchant expresses confusion on whether “we” refers to Rainville, individually, or to STAW-NO as an organization. Marchant concedes Rainville attended meetings that it held with other interested neighborhood organizations. Therefore, if “we” refers to his attendance at these meetings with others aligned with his cause, then the assertion that “[w]e have met” is true. If “we” refers only to STAWNO as an entity, it may still be true if Rainville’s presence at those meetings was in his representative capacity as the president of STAWNO.

The word “listen” in the second sentence is obviously used figuratively and means more than simply hearing another person; it incorporates the more subjective qualities of attention and reflection on a specific subject. In a letter expressing its frustration with the project, this statement is most accurately read as an expressed belief that Marchant was not actively considering the issues raised by STAWNO.

Third, and finally, we address whether the statement is sufficiently objective to be susceptible of being proved true or false. The first sentence is somewhat capable of verification; the use of “countless” suggests a large number. But the ambiguity on who is meant by the pronoun “we” and whether Rainville alone represents the organization’s identity makes the sentence less subject to proof. The second sentence, however, is inherently subjective, reflecting the perception of STAWNO, and is not verifiable through any objective means. Whether Marchant listened to STAWNO’s concerns is likely incapable of being proved true or false. And Marchant has not claimed that it significantly changed the plans in response to community concerns. When language is notably ambiguous and the chosen interpretation affects the truth or falsity of the statements, we cannot say that the statements are capable of being proved true or false.

The participation-in-government immunity provided under Minn.Stat. §§ 554.01-554.05 (2004) explicitly requires the non-moving party to disprove the movant’s immunity by clearly and convincingly establishing an underlying tort. Even assuming that all facts alleged in the complaint are true and drawing all reasonable inferences in Marchant’s favor, it has not met this high, statutorily imposed burden. See Swanlund, v. Shimano Indus. Corp., 459 N.W.2d 151, 154 (Minn.App.1990) (stating that clear and convincing standard requires court to view evidence “through the prism of the substantive evidentiary burden” (quotation omitted)), review denied (Minn. Oct. 5,1990). The district court did not err in dismissing the defamation claim in accord with the immunity provision in the participation-in-government statute.

Marchant also appeals the district court’s grant of attorneys’ fees to STAW-NO but acknowledges that entitlement to costs and attorneys’ fees is nondiscretion-ary under Minn.Stat. § 554.04, subd. 1 (“The court shall award a moving party who prevails in a motion under this chapter reasonable attorney fees and costs associated with the bringing of the motion.”). Because STAWNO has prevailed on the defamation issue, it is entitled to the attorneys’ fees allowed by the district court.

With respect to Marchant’s claims in addition to defamation, the district court held that they were viable only if Mar-chant succeeded on its defamation claim. Marchant has not separately addressed these claims in its appeal. Although STAWNO has addressed them in its response brief, we decline to extend our review beyond those issues raised by the appellant.

DECISION

Marchant failed to clearly and convincingly demonstrate that STAWNO’s statements constitute defamation. We conclude, in the absence of clear and convincing proof of an underlying tort or violation of constitutional rights, the participation-in-government immunity provided by Minn.Stat. §§ 554.01-554.05 (2004) applies, and we affirm the district court’s dismissal of Marchant’s claims.

Affirmed.


author: TOUSSAINT, Chief Judge.

text:
    STATE of Minnesota, Respondent, v. Stephanie Dawn LOSH, Appellant.
    No. A04-1028.
    Court of Appeals of Minnesota.
    April 5, 2005.

      Earl E. Maus, Cass County Attorney, Walker, MN; and Mike Hatch, Attorney General, Thomas R. Ragatz, Assistant Attorney General, St. Paul, MN, for respondent.
    Bradford W. Colbert, L.A.M.P., Kristin Hubred (certified student attorney), St. Paul, MN, for appellant.
    Considered and decided by TOUSSAINT, Chief Judge; GORDON SHUMAKER, Judge; and DIETZEN, Judge.
   OPINION

TOUSSAINT, Chief Judge.

Appellant challenges (1) the validity of the upward durational departure of her sentence under Blakely v. Washington, — U.S. -, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) and (2) the revocation of her probation and execution of her sentence. Because we hold that Blakely does not apply retroactively to a pending probation-revocation appeal after the time to file a direct appeal from the final judgment has expired, we affirm appellant’s sentence. And because the district court did not abuse its discretion by revoking appellant’s probation, we affirm the execution of her sentence.

FACTS

Appellant Stephanie Losh was involved in an incident in which two of her friends beat an individual who later died from his injuries. Losh was indicted by a grand jury for second-degree murder and pleaded guilty to aiding and abetting kidnapping under a plea agreement. At the August 18, 2003, sentencing hearing, both parties made arguments regarding the possibility of a dispositional departure but not a dura-tional departure.

The district court sentenced Losh to 120 months in prison. This upward durational departure from the presumptive 86 months was based on the aggravating factor of the victim’s vulnerability. The court then dis-positionally departed from the sentence by staying execution, ordering Losh to serve one year in jail with Huber privileges for school and chemical dependency treatment, and placing her on probation for 40 years. The conditions of probation included refraining from use of mood-altering substances and submitting to random drug testing.

While serving her jail time, Losh attended classes at Northwest Technical College. Nine days before her sentence expired, Losh returned to jail from school and reported that she did not feel well. When a corrections officer asked if Losh had taken anything for her illness, she reported that she had taken a pill from her aunt, who also attended classes at the college, but did not know what the pill was. Losh was then given a urinalysis test which tested positive for morphine.

At the March 8, 2004 probation violation hearing, Losh testified that she had asked her aunt for a Tylenol. Her aunt did not have a Tylenol but gave Losh a pill that Losh thought was a Motrin. Losh claimed that, when she later called her mother from the college and reported that she did not feel well, she realized that the pill her aunt had mistakenly given her was a hy-drocodone, which her aunt had been prescribed for a previous miscarriage. Losh testified that she did not intentionally violate her probation and that ingesting the hydrocodone, containing morphine, was accidental.

The district court revoked Losh’s probation, telling her, ‘Tour attorney argues forcibly for you that this was not an intentional act, but I do not find that to be credible.” The district court then executed Losh’s 120-month prison sentence. Losh challenges the constitutional validity of the upward durational departure of her prison sentence under Blakely and the revocation of the stay of execution.

ISSUES

I. Does Blakely apply retroactively to a defendant’s pending probation-revocation appeal taken after the time to file a direct appeal from the final judgment has expired?

II. Did the district court abuse its discretion in revoking Losh’s probation and executing her sentence?

ANALYSIS

I.

Losh argues that the upward du-rational departure of her sentence based on the district court’s finding of the “vulnerability of the victim” aggravating factor violates her jury-trial rights under Blakely v. Washington, — U.S. -, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). Losh was sentenced on September 18, 2003. Her time to file a direct appeal of the final judgment elapsed 90 days from that date. See Minn. R.Crim. P. 28.02, subd. 4(3). Losh did not directly appeal the final judgment. However, she appealed from the March 8, 2004, revocation of her probation on June 7, 2004. Blakely was decided on June 24, 2004, while that probation-revocation appeal was pending.

Blakely applies retroactively to matters pending on direct appeal when it was announced. See O’Meara v. State, 679 N.W.2d 334, 339 (Minn.2004) (new rules of federal constitutional procedure apply to matters pending on direct review when the rule is announced). The United States Supreme Court has stated that “we fulfill our judicial responsibility by instructing the lower courts to apply the new rule [of criminal constitutional procedure] retroactively to cases not yet final.” Griffith v. Kentucky, 479 U.S. 314, 323, 107 S.Ct. 708, 713, 93 L.Ed.2d 649 (1987). The retroac-tivity analysis for convictions that have become final is different from the analysis for convictions that are not final at the time the new rule is announced. Id. at 321-22, 107 S.Ct. at 712. The application of new rules to pending matters protects the integrity of judicial review by avoiding inequities between treatment of similarly situated defendants. Id. at 323, 107 S.Ct. at 713; see State v. Lewis, 656 N.W.2d 535, 538 (Minn.2003) (“[T]o apply a new rule to the case in which it was announced but to not apply it to other cases that were then on direct appeal ‘would be to treat similarly situated criminal defendants differently.’ ”) (citation omitted).

Thus, the point at which a judgment becomes final is the critical point for purposes of retroactivity analysis. Protecting the integrity of judicial review does not require extending a new rule of criminal constitutional procedure to a differently situated class, namely those defendants whose convictions have become final. Further, extending the new rule to those challenging the revocation of their probation would treat differently those with stayed sentences from those with executed sentences.

Accordingly, because Blakely was released after the period to file a direct appeal from Losh’s conviction was final, we conclude that Blakely does not apply to Losh’s pending probation-revocation appeal.

II.

Losh also argues that because her probation violation was unintentional, the district court erred by executing her sentence. On review of a probation revocation, this court will reverse the decision only if the district court clearly abused its discretion. State v. Austin, 295 N.W.2d 246, 249-50 (Minn.1980). The state must prove a probation violation by clear and convincing evidence. Minn. R.Crim. P. 27.04, subd. 3. When revoking probation, a district court must use the following three-part test: “1) designate the specific condition or conditions that were violated; 2) find that the violation was intentional or inexcusable; and 3) find that [the] need for confinement outweighs the policies favoring probation.” Austin, 295 N.W.2d at 250.

The district court failed to expressly follow the Austin test when it revoked Losh’s probation. While we prefer that the district court articulate specific findings on each of the Austin factors, specific findings are not mandatory to support a probation-revocation if the decision is supported by sufficient evidence in the record. State v. Hamilton, 646 N.W.2d 915, 918 (Minn.App.2002), review denied (Minn. Sept. 25, 2002). To support the first Aus tin factor, Losh does not dispute that she violated a condition of her probation by taking a hydrocodone pill. But Losh argues that because she mistakenly took the pill believing it to be a form of aspirin, the violation was not intentional or inexcusable to support the second Austin factor.

At the probation revocation hearing, Losh testified that she was suffering from a headache on the day of the incident; she asked her aunt, a classmate, for a Tylenol; and she took from her aunt what Losh thought was a Motrin, another form of aspirin. Losh explained that only later, when she became ill and spoke with her mother, did she realize that her aunt had mistakenly given her a hydrocodone pill. The district court found Losh’s account of these events not to be credible: Losh’s claim that her aunt did not tell her what was in the pill did not comport with the fact that she knew what she might have taken once she returned to the jail. And the district court discounted Losh’s claim that a call to her mother triggered her memory that her aunt may have had hy-drocodone pills prescribed following a miscarriage. Because the district court’s role is to judge the credibility of the witnesses, we defer to the district court’s credibility evaluations. See State v. Moot, 398 N.W.2d 21, 23 (Minn.App.1986) (district court acts as factfinder by weighing witness credibility), review denied (Minn. Feb. 13, 1987); State v. Spanyard, 358 N.W.2d 125, 127 (Minn.App.1984) (citing State v. Pieschke, 295 N.W.2d 580, 584 (Minn.1980) (deferring to district court’s evaluation of witness credibility when district court did not believe defendant’s explanations)), review denied (Minn. Feb. 27, 1985).

To support the third Austin factor, the district court must find that the need for confinement outweighs the policies in favor of probation. Without referencing the third Austin factor expressly, the district court stated that:

This entire incident was the result of the abuse of drugs and alcohol and poor choices. [T]o allow you to again use or be involved with people who use chemicals in violation of the conditions of probation would not serve the public interest. This crime was the most vicious thing that I’ve ever seen and you were a part of it. And I realistically should have sent you to prison before, but I wanted to give you the opportunity to make a success of yourself.

Thus, the district court found that Losh’s continued use and involvement with controlled substances is a danger to the public interest. This finding adequately supports the third Austin factor. Because the Austin test is satisfied, the district court did not abuse its discretion by revoking the stay and executing Losh’s sentence.

DECISION

Because Blakely does not apply retroactively to a probation-revocation appeal, and the district court did not abuse its discretion by revoking Losh’s probation, we affirm the execution of Losh’s sentence.

Affirmed.

      . We address this issue although the state agrees with Losh that Blakely applies. '‘[I]t is the responsibility of appellate courts to decide cases in accordance with law, and that responsibility is not to be ‘diluted by counsel’s oversights, lack of research, failure to specify issues or to cite relevant authorities.’ ” State v. Hannuksela, 452 N.W.2d 668, 673 n. 7 (Minn.1990).

      . We note that the retroactivity analysis of Griffith focuses on when the conviction becomes final, not when the sentence may no longer be modified. In Minnesota, a sentence may be modified at any time. Minn. R.Crim. P. 27.03, subd. 9; see also State v. Hockensmith, 417 N.W.2d 630, 632 (Minn.1988) (allowing a defendant to challenge an upward durational departure at a probation-revocation hearing); State v. Fields, 416 N.W.2d 734, 736 (Minn.1987) (same). But the fact that modification of a sentence is possible does not mean a judgment is not final for the purpose of precluding the retroactive application of a new rule.


text:
    WESTFIELD INSURANCE COMPANY, Appellant, v. Stephen J. KROISS, et al., d/b/a S. Kroiss Homes, Respondents.
    No. A04-1330.
    Court of Appeals of Minnesota.
    April 5, 2005.

      Deborah C. Eckland, Goetz & Eckland, P.A., Minneapolis, MN, for appellant.
    Rikke Dierssen-Morice, Faegre & Benson, L.L.P., Minneapolis, MN, for respondents.
    Jocelyn L. Knoll, Fabyanske, Westra & Hart, P.A., Minneapolis, MN, for amicus curiae.
    Considered and decided by RANDALL, Presiding Judge; MINGE, Judge; and WRIGHT, Judge.
   OPINION

MINGE, Judge.

Appellant insurer challenges the district court’s finding that it had a duty to defend respondents homebuilders against lawsuits for water damages allegedly caused by defective construction. Respondents contend that the district court erred by not allowing them to recover attorney fees in the declaratory judgment action to determine appellant’s duty to defend. Because we conclude that appellant breached its duty to defend, we affirm in part. Because we conclude respondents’ attorney fees from the declaratory judgment action are damages arising from that breach, we reverse in part and remand.

FACTS

Respondents Stephen J. Kroiss and Stephen R. Kroiss d/b/a S. Kroiss Homes are in the business of residential construction. Respondents purchased commercial general liability insurance from appellant West-field Insurance Company that covered the period from October 8, 1993 through May 15, 1995. The insurance was an occurrence policy, which included a duty to defend and to indemnify for property damage that occurred during the policy.

Seven homeowners brought actions against respondents alleging construction defects for homes built during the period when appellant’s policy covered respondents. Each of these actions asserted that allegedly defective construction by respondents had caused water intrusion damage. In some of the cases, respondents attempted to remedy the problem after the homeowners moved in, but water damage was still observed at the time these lawsuits were brought. None of the complaints state when the water damage occurred.

Respondents tendered these lawsuits to appellant and appellant refused to defend the suits. Two other insurers who issued later policies agreed to defend the lawsuits, reserving their rights. After repeated requests by respondents for appellant to reconsider and assume defense of the lawsuits, appellant initiated this declaratory judgment action seeking to establish it had no duty to defend or to indemnify respondents. Respondents filed a counterclaim for a declaratory judgment that appellant owed a duty to defend and indemnify respondents, that appellant breached those duties, and that appellant owed respondents’ attorney fees because it had breached its duty to defend.

The district court denied appellant’s motion for summary judgment and granted respondents’ motion for partial summary judgment holding that appellant had a duty to defend respondents in the underlying actions. The summary judgment order was appealed to this court, and we dismissed the appeal on jurisdictional grounds and remanded.

On remand, the district court denied respondents’ motion for attorney fees and certified for interlocutory appeal to this court the question of the duty to defend. The present appeal is pursuant to that certification. In the memorandum accompanying its order, the district court stated that because attorney fees had not been granted, the respondents “suffered no damages as a direct loss incident to the breach of contract.” In an affidavit, respondents’ attorney attached a billing statement that indicated that respondents’ attorney was required to communicate with the other insurers who had agreed to defend respondents in the underlying suit. The communications were about respondents’ potential liability for gaps in coverage due to appellant’s refusal to participate in the defense.

ISSUES

I. Did the district court err by holding that appellant had a duty to defend the respondents in the claims brought against him by the homeowners?

II. Did the district court err by denying respondents’ motion for attorney fees?

ANALYSIS

When reviewing a summary judgment award, this court must determine whether there are any genuine issues of material fact and whether the district court was correct in its application of the law. St. Paul Fire & Marine Ins. Co. v. Nat’l Chiropractic Mut. Ins. Co., 496 N.W.2d 411, 415 (Minn.App.1993), review denied (Minn. Apr. 29, 1993). On review of a grant of summary judgment, this court views the evidence in the light most favorable to the party against whom summary judgment was granted. Andrew L. Youngquist, Inc. v. Cincinnati Ins. Co., 625 N.W.2d 178, 183 (Minn.App.2001). The construction of an insurance policy is a question of law, subject to de novo review. Alpha Real Estate Co. of Rochester v. Delta Dental Plan of Minn., 664 N.W.2d 303, 311 (Minn.2003); Iowa Kemper Ins. Co. v. Stone, 269 N.W.2d 885, 886-87 (Minn.1978).

I.

The first issue is whether appellant has a duty to defend respondents in the underlying action. Appellant contends that because there is no direct indication that the damage occurred during the time of appellant’s policy, the lawsuits are not arguably within the scope of coverage.

The duty to defend an insured is broader than the duty to indemnify. St. Paul Fire & Marine Ins. Co. v. Nat’l Computer Sys., Inc., 490 N.W.2d 626, 631 (Minn.App.1992), review denied (Minn. Nov. 17, 1992). The duty to defend a claim against an insured “arises when any part of the claim is ‘arguably’ within the scope of the policy’s coverage.” Jostens, Inc. v. Mission Ins. Co., 387 N.W.2d 161, 165 (Minn.1986). Usually, a duty to defend is determined by comparing the complaint with the policy language. SCSC Corp. v. Allied Mut. Ins. Co., 536 N.W.2d 305, 316 (Minn.1995). However, if the insurer has knowledge of facts outside the complaint, it can use these to determine coverage. Id. An insurer who seeks to avoid the duty to defend has the “burden of showing that all parts of the cause of action fall clearly outside the scope of coverage.” Jostens, 387 N.W.2d at 165-66.

To determine if a particular policy is triggered by an occurrence, there must be an actual injury. N. States Power Co. v. Fid. and Cas. Co. of N.Y., 523 N.W.2d 657, 662 (Minn.1994). This means that there must be damages during the period of policy coverage. Id. However, the injury need not be diagnosable, compensable or manifest when the policy is in force. In re Silicone Implant Ins. Coverage Litig., 667 N.W.2d 405, 415 (Minn.2003). In situations where damages may be spread over a period of time and therefore implicate different insurers, Minnesota courts have either spread the liability among the different insurers if the damages were the result of continuing events or assigned the liability to the insurers based on the period of time when the main event and primary damages occurred. See Silicone Implant, 667 N.W.2d at 422; SCSC, 536 N.W.2d at 318; N. States Power Co., 523 N.W.2d at 664.

Appellant contends that because the complaints do not specifically allege that damages occurred during the time of appellant’s policies and respondents have provided no evidence that damages occurred at that time, appellant does not have a duty to defend. Generally where questions of fact need to be discovered to determine if an insurer has a duty to indemnify, a duty to defend exists. See, e.g., Prahm v. Rupp Constr. Co., 277 N.W.2d 389, 391 (Minn.1979) (holding that duty to defend exists despite uncertainty over who had dominion or control over a baekhoe at the time of the accident); Reinsurance Ass’n of Minn. v. Timmer, 641 N.W.2d 302, 311-15 (Minn.App.2002) (holding that a complaint for fraud and consumer fraud can be reasonably construed to include negligent misrepresentation, which would be covered as a non-intentional act), review denied (Minn. May 14, 2002).

Here, all of the homeowners assert that due to defective construction by respondents during the time of appellant’s coverage, water damage occurred. Since the faulty construction allegedly allowed water to seep into the homes, damage could have began when appellant’s policies were in force. In the cases where damages have occurred continuously or repeatedly over time, the courts have considered the entire time in which damages could have occurred before deciding when to actually assess liability. See Silicone Implant, 667 N.W.2d at 422; SCSC, 536 N.W.2d at 317-18; N. States Power Co., 523 N.W.2d at 664. Whether damages in this case actually occurred within the policy coverage period is a question of fact that would have to be determined at a trial. Therefore, the damages arguably fall within the time of the policy. If the appellant wants to avoid the expense of defending this action, it has the burden to show that there was no damage at the time its policy was in force.

This conclusion is consistent with the Minnesota Supreme Court’s decision in SCSC, 536 N.W.2d at 305. In that case the insured asked the insurer for indemnity and defense for groundwater contamination and cleanup costs on the basis that “B]t ⅛ possible that the soil and groundwater contamination alleged by the MPCA began and continued throughout the coverage.” Id. at 316. The court stated that this gave the insurer sufficient notice that a claim for arguable coverage had been presented. Id. In the present action, appellant claims that because the underlying complaints did not specifically allege that damage had occurred at the time of policy coverage, appellant did not have a duty to defend. However, because the complaints alleged damages arising out of defective construction that occurred at the time the policy was in force, the case before us is similar to the facts in SCSC. The result is that respondents in this case gave appellant notice that a claim for arguable coverage was presented.

II.

The next issue is whether respondents should have been awarded attorney fees and costs for this declaratory judgment action based on appellant’s breach of its contractual duty to defend respondents.

Unless there is statutory authority for it, legal fees ordinarily are not recoverable. Morrison v. Swenson, 274 Minn. 127, 137, 142 N.W.2d 640, 647 (1966). However, in an action to recover damages for breach of contract, legal fees incurred in a declaratory judgment action are “damages arising directly as the result of the breach.” Id. at 138, 142 N.W.2d at 647. As a result, the rule is that “[t]he insured is not entitled to recover attorney fees incurred in maintaining or defending a declaratory action to determine the question of coverage unless the insurer has breached the insurance contract in some respect-usually by wrongfully refusing to defend the insured.” Am. Standard Ins. Co. v. Le, 551 N.W.2d 923, 927 (Minn.1996).

There is no question that respondents requested that appellant fulfill its duty to defend respondents in the underlying action and that appellant denied it had a duty to defend. Therefore, ordinarily under established caselaw respondents could recover their attorney fees from the subsequent declaratory judgment action. However, it appears that the district court denied respondents’ motion for attorney fees because it believed that respondents had not suffered any damages as a result of the breach. The apparent lack of damages exists because the other insurers assumed the duty to defend respondents under a reservation of rights.

The district court cited Rent-A-Scooter, Inc. v. Universal Underwriters Ins. Co., to support its conclusion that attorney fees not be awarded. 285 Minn. 264, 173 N.W.2d 9 (1969). The court in Rent-A-Scooter, considered a case where the insured, a scooter rental service, did not defend the underlying action, allowed a default judgment to be entered against it, and then sued the insurer in a declaratory judgment action to establish coverage under the policy. Id. at 266, 173 N.W.2d at 10. The court held that the insured could not recover attorney fees in the declaratory judgment action because the scooter rental service offered no defense in the action. Id at 269, 173 N.W.2d at 12. Appellant in the present case argues that since respondents did not offer its own defense in the underlying action, respondents should likewise not be able to recover attorney fees. However, it is significant that the insurer in RenL-A-Scooter did not breach its duty to defend because the insured never tendered the lawsuit to it. Id. at 265, 173 N.W.2d at 10. Therefore, the rule of Renir-A-Scooter does not support the proposition that a party cannot recover attorney fees if after the insurer breaches its contractual duty to defend, other insurers undertake the insured’s defense.

Other cases support respondents’ recovery of attorney fees in this situation. In Andrew L. Youngquist, after one insurer refused coverage and another insurer undertook the defense in the underlying claim, the insured was able to recover the legal costs of the declaratory judgment. 625 N.W.2d at 187-88. In that case the insured did have damages because the insured was required to pay a $5,000 deductible to the insurer who undertook the defense. Id. at 187. In Andrew L. Youngquist, the insured was able to recover attorney fees even though the only cost it had in the underlying action was its insurance deductible. Id. It would be arbitrary and unfair to allow an insured that had incurred only a minimal loss for the deductible in the underlying suit to recover the potentially substantial attorney fee in the declaratory judgment action while another party, such as appellant, who was exposed to substantial loss in the underlying suit was unable to recover attorney fees.

Silicone Implant also discusses the difference between a contractual duty to defend and a duty to reimburse the insured for defense costs in an underlying action. 667 N.W.2d at 425. In that case the court did not allow the insured to recover attorney expenses in the declaratory judgment action because the insurer only had a duty to reimburse. Id. at 423-25. The court held that the duty to defend was more extensive than the duty to reimburse, stating, “[T]he burden of litigation extends beyond the monetary costs of litigation and encompasses hiring attorneys and managing lawsuits.” Id. The respondents in the action before us have the benefit of a policy that provides a duty to defend. The respondents have been required to manage the portion of the liability defense by communicating with the other insurers about settlement offers. An affidavit and attached documentation from respondents’ counsel show time spent and hours billed by counsel to represent respondents in dealing with liability for the period respondents were covered by appellant.

We conclude that the attorney fees of the declaratory judgment action are damages arising directly from the breach of the duty to defend. But for the assertion of underlying claims by the homeowners, the attorney fees in the declaratory judgment action would not have been incurred. In this sense respondents’ damages parallel the cost of defending against the claim and damages in the underlying action. The caselaw clearly states that where an insurer refuses to defend an insured after the insured has tendered the suit and a duty to defend is subsequently determined in a declaratory judgment action, the insured can recover the attorney fees for the declaratory judgment action. Therefore, we conclude that the respondents are entitled to recover their attorney fees in the declaratory judgment action.

DECISION

Because the district court properly determined that the claims asserted against the respondents were arguably covered by appellant’s policy, we affirm the district court’s holding that the appellant had a duty to defend the respondents. However, because the respondents’ attorney fees in the declaratory judgment were damages arising out of appellant’s breach of its duty to defend, we reverse the district court’s denial of attorney fees and costs, and remand to the district court to determine the proper amount of those fees as damages.

Affirmed in part, reversed in part and remanded.