author: TERNUS, Justice.

text:
    John F. DUDER, Appellant, v. Randall J. SHANKS, Appellee.
    No. 03-1036.
    Supreme Court of Iowa.
    Nov. 19, 2004.

      Theodore Boecker of Sherrets & Boecker, L.L.C., Omaha, Nebraska, for appellant.
    John M. French of Peters Law Firm, P.C., Council Bluffs, for appellee.
   TERNUS, Justice.

The plaintiff, John Duder, appeals an order confirming the automatic dismissal of his lawsuit against the defendant, Randall Shanks, under Iowa’s uniform rule for dismissal for want of prosecution, Iowa Rule of Civil Procedure 1.944 (formerly known as rule 215.1). Duder claims he did not receive a try-or-dismiss notice, and therefore the case was not automatically dismissed under the rule. He also asserts a district court order setting the case for trial and approving the parties’ stipulation to remove the case from the clerk’s dismissal list effectively avoided dismissal or, alternatively, reinstated the case. Finally, he argues because the defendant’s counsel stipulated to have the ease removed from the dismissal list, he should be estopped from now claiming that the case has been dismissed. We, like the district court, find no merit in these arguments. Therefore, we affirm the district court judgment.

I. Background Facts and Proceedings.

In August 1998 John Duder brought suit against Randall Shanks, his former attorney, to resolve a fee dispute between them. By late 2000 discovery had been completed, the court had ruled on the parties’ motions for summary judgment, and the case was ready for trial. The clerk’s court calendar for this case contained a notation that on July 18, 2000, a notice of dismissal under rule 1.944 was sent to the attorneys of record.

In December 2000 counsel for Duder attempted to contact Shanks’ attorney to have a pretrial order entered, but did not reach defense counsel until January 2, 2001. At that time both attorneys signed a preprinted form for a pretrial order to be presented to a judge for approval. The plaintiffs counsel had added the following typewritten sentence after the preprinted heading for “Additional Provisions”: “This case shall be removed from the Rule 215 dismissal list.” This order, which was signed by a district court judge on January 3, 2001, provided that trial would be held on November 27, 2001.

On July 31, 2001, the defendant moved to dismiss the case based upon the contention the matter had been automatically dismissed by operation of law on January 1, 2001. The defendant asserted the parties’ January 2, 2001 stipulation did not save the claim, and it was too late to have the matter reinstated because the six-month period for filing an application for reinstatement had expired. The plaintiff resisted, arguing (1) rule 1.944 does not provide for automatic dismissal; (2) the plaintiffs counsel had not received a try- or-dismiss notice or subsequent notification from the clerk that the case had been dismissed as is customary in that county; (3) the plaintiff had complied with rule 1.944 by obtaining the pretrial order setting the case for trial and removing it from the dismissal list; (4) even if the case had been automatically dismissed, defense counsel had stipulated to its reinstatement and should be bound by that stipulation; and (5) the defendant’s counsel had acted in bad faith. The district court denied the defendant’s motion, finding that the January 3, 2001 pretrial order had taken the case off the clerk’s dismissal list, and as a result, the clerk had not sent the customary dismissal notice to the parties. The court further found the clerk and the plaintiffs attorney had both relied on the pretrial order and did not believe that any further action was required to keep the case alive. The court held the defendant was estopped to assert dismissal had occurred in view of the fact that his counsel had stipulated to removing the case from the dismissal list. Finally, the district court held that even if the case had been dismissed by operation of law, the dismissal was set aside by the stipulated pretrial order signed by the court on January 3, 2001. This court subsequently denied the defendant’s application for interlocutory appeal.

On February 13, 2003, the defendant filed a renewed motion to dismiss and motion for summary judgment based upon the plaintiffs failure to try the case prior to January 1, 2001. The- plaintiff again resisted, but this time the district court granted the motion to dismiss. See generally Hoefer v. Wis. Educ. Ass’n Ins. Trust, 470 N.W.2d 336, 339 (Iowa 1991) (“Iowa adheres to the general rule that a district court judge may review and change a prior interlocutory ruling of another district judge in the same case.”). First, although the plaintiff had not reasserted his prior argument that his attorney had not received the try-or-dismiss notice, the court found that it was “unquestionably clear that the plaintiff was aware of the pending dismissal issue by the language of his motion filed January 2, 2001,” referring to removal of the case from the dismissal list. The court then held (1) dismissal under rule 1.944 was automatic and no order from the court was necessary; (2) the plaintiff had not substantially complied with requirements for obtaining a continuance to avoid dismissal; and (3) the case was automatically dismissed on January 1, 2001. The court concluded that the filings and order of January 2 and 3, 2001 could not be deemed a reinstatement, and the clerk’s failure to send a notice of dismissal was of no consequence. Finally, the court held the plaintiff could not rely on estoppel to excuse his failure to properly seek reinstatement. Because the present case had been dismissed by operation of law and no reinstatement had been sought, the district court concluded it was required to grant the motion to dismiss.

The plaintiff appeals, raising the following issues: (1) the case was not subject to dismissal because the plaintiffs counsel did not receive a try-or-dismiss notice; (2) rule 1.944 does not provide for automatic dismissal; (3) the clerk of court did not issue a dismissal notice in January 2001, as would be customary if the case had been dismissed; (4) the defendant’s counsel stipulated to reinstatement in the pretrial order approved by the court and should be estopped from claiming the court had no authority to remove the case from the dismissal list; (5) the case was reinstated by the court on January 3, 2001; and (6) this court’s denial of the defendant’s application for interlocutory appeal from the first ruling denying dismissal constituted a determination that the initial ruling was correct.

II. Scope of Review.

A district court’s ruling on a motion to dismiss is reviewed for correction of errors at law. Bartsch v. Bartsch, 636 N.W.2d 3, 5 (Iowa 2001). If the trial court has made findings of fact, those findings are binding on the reviewing court if they are supported by substantial evidence in the record. Id. The reviewing court is “not bound, however, by the trial court’s application of legal principles or its conclusions of law.” Id.

III. Was This Case Automatically Dismissed Under Rule 1.9⅛⅛?

Rule 1.944 states in pertinent part:

1.944(2) All cases at law or in equity where the petition has been filed more than one year prior to July 15 of any year shall be for trial at any time prior to January 1 of the next succeeding year. The clerk shall prior to August 15 of each year give notice to counsel of record ... of the docket number, the names of parties, counsel appearing, and date of filing petition. The notice shall state that such case will be for trial and subject to dismissal if not tried prior to January 1 of the next succeeding year pursuant to this rule. All such cases shall be assigned and tried or dismissed without prejudice at plaintiffs costs unless satisfactory reasons for want of prosecution or grounds for continuance be shown by application and ruling thereon after notice and not ex parte.
1.944(5) No continuance under this rule shall be by stipulation of parties alone but must be by order of court. Where appropriate the order of continuance shall be to a date certain.
1.944(6) The trial court may, in its discretion, and shall upon a showing that such dismissal was the result of oversight, mistake or other reasonable cause, reinstate the action or actions so dismissed. Application for such reinstatement, setting forth the grounds therefor, shall be filed within six months from the date of dismissal.

Iowa R. Civ. P. 1.944. “The purpose of rule [1.944] is to promote expeditious trial of cases on the merits by clearing the docket of dead cases and assuring ‘the timely and diligent prosecution of those cases that should be brought to a conclusion.’ ” O’Brien v. Mullapudi, 405 N.W.2d 815, 816 (Iowa 1987) (citation omitted). The rule sets out the specific manner in which this policy will be accomplished. We have held its terms are positive, definite, and mandatory, and its operation is not discretionary with the court. Talbot v. Talbot, 255 Iowa 337, 340, 122 N.W.2d 456, 458 (1963).

Rule 1.944 provides that a case not tried within the stated timeframe will be dismissed unless the plaintiff establishes “satisfactory reasons for want of prosecution” or shows “grounds for continuance.” Iowa R. Civ. P. 1.944(2). The trial court has discretion to grant a continuance for just cause, but there must be a timely application for a continuance; the court has no authority to continue a matter on its own. Talbot, 255 Iowa at 340-41, 122 N.W.2d at 458. Moreover, if the case has not been continued prior to the date set for dismissal, dismissal is automatic, provided the try-or-dismiss notice required by the rule has been served on the parties. See Greif v. K-Mart Corp., 404 N.W.2d 151, 154 (Iowa 1987) (dismissal automatic); Erickson v. Salama, 379 N.W.2d 904, 906 (Iowa 1986) (service of try-or-dismiss notice a prerequisite to dismissal); Greene v. Tri-County Cmty. Sch. Dist., 315 N.W.2d 779, 781 (Iowa 1982) (dismissal automatic). So, we first consider whether the required try-or-dismiss notice was served in this case.

Service of the try-or-dismiss notice must be provided pursuant to the methods set out in Iowa Rule of Civil Procedure 1.442. See Iowa R. Civ. P. 1.944(2). In pertinent part, that rule states: “Service shall be made by delivering, mailing, or transmitting by fax (facsimile) a copy to the attorney or to the party at the attorney’s or party’s last known address.... Service by mail is complete upon mailing.” Iowa R. Civ. P. 1.442(2). Despite the fact that service is accomplished upon mailing and consequently it is not necessary to show receipt, proof that an addressee did not receive a piece of mail is competent evidence that it was not mailed. Liberty Mut. Ins. Co. v. Caterpillar Tractor Co., 353 N.W.2d 854, 858 (Iowa 1984).

The factual record on this issue in the present case includes evidence of a notation in the records of the clerk of court that a try-or-dismiss notice was sent to the plaintiffs counsel on July 18, 2000. The plaintiffs attorney filed an affidavit, however, stating that a search of his firm’s office files revealed no try-or-dismiss notice in 2000 referencing this suit. The district court concluded nonetheless that the plaintiffs counsel obviously was aware of the pending dismissal as indicated by his attempts before the end of the year to have the matter continued. Although the court did not make an express finding that the try-or-dismiss notice was served on the parties’ attorneys, such a finding is implicit in the court’s ruling that the lawsuit was automatically dismissed on January 1, 2001. See EnviroGas, L.P. v. Cedar Rapids/Linn County Solid Waste Agency, 641 N.W.2d 776, 782 (Iowa 2002) (presuming “factual matter was resolved so as to support the court’s ultimate ruling”); Bankers Trust Co. v. Fidata Trust Co., 452 N.W.2d 411, 413 (Iowa 1990) (same); Brichacek v. Hiskey, 401 N.W.2d 44, 46 (Iowa 1987) (assuming “as fact an unstated finding that is necessary to support the [court’s] judgment”).

We think the clerk of court’s record of mailing the try-or-dismiss notice and the subsequent actions of the plaintiffs counsel consistent with receipt of the notice constitute substantial evidence to support the district court’s finding that the notice was served as required by rule 1.944. Therefore, this factual finding is binding on us. It follows then that the case was automatically dismissed on January 1, 2001, as there is no contention the matter was tried or continued prior to that date. The clerk of court’s apparent action in removing the case from the clerk’s list of dismissed cases had no legal effect. See Greif, 404 N.W.2d at 154 (holding the clerk’s “[fjailure to note the dismissal of record does not save [a] case” that has been automatically dismissed); Baty v. City of West Des Moines, 259 Iowa 1017, 1023, 147 N.W.2d 204, 208 (1966) (same). Accordingly, in January 2001, the only way the plaintiffs suit could have been saved was through reinstatement by the court upon a properly supported application. See Werkmeister v. Kroneberger, 262 N.W.2d 295, 296 (Iowa 1978) (holding trial court was without authority to try a case that had been automatically dismissed “unless it was properly reinstated according to rule [1.944] ”). We turn now to the issue of reinstatement.

IV. Was the Case Reinstated After Its Dismissal on January 1, 2001 ?

Rule 1.944 provides for mandatory or discretionary reinstatement. To qualify for either, however, an application for reinstatement, “setting forth the grounds therefor,” must be filed within six months of dismissal. Iowa R. Civ. P. 1.944(6); see Greene, 315 N.W.2d at 781 (holding court has no discretion in the matter in the absence of a timely application). The plaintiff claims that the pretrial order approved by the parties and signed by the court constituted a de facto reinstatement of the case. The district court rejected this argument, noting that the stipulated order was never intended by the plaintiff to be an application for reinstatement because “the plaintiff contended at that time and continues to contend at this time that there has, in fact, been no dismissal of this case at any point in time.”

We agree with the district court’s view of the situation. The pretrial order did not address the matter of reinstatement; it merely took the case off the clerk’s list of dismissed cases. But as we have already noted, the inclusion or exclusion of a case from this list has no legal significance. Cases are dismissed automatically without any action by the clerk of court. Consequently, the parties’ agreement to remove the case from the clerk’s list did not prevent its dismissal.

For the same reason, the stipulated order did not accomplish reinstatement of the plaintiffs action. No showing was made in January 2001 of any grounds justifying mandatory reinstatement. See Iowa R. Civ. P. 1.944(6) (requiring reinstatement “upon a showing that such dismissal was the result of oversight, mistake or other reasonable cause”). Nor was there any showing at that time to support discretionary reinstatement. The lack of any such showing is attributable to the fact that the plaintiff did not intend to seek reinstatement in January 2001. As the plaintiff acknowledges in his appellate brief, his intent in having the defendant stipulate that the case could be removed from the dismissal list was “to avoid the necessity of filing a formal motion to vacate and/ or to reinstate the case.” (Emphasis added.)

The plaintiffs reliance on our decision in Gold Crown Properties, Inc. v. Iowa District Court, 375 N.W.2d 692 (Iowa 1985), is misplaced. In that case, the plaintiff filed an application for continuance after the dismissal date and shortly thereafter filed a resistance to a motion for a formal order of dismissal that had been filed by the defendant. Gold Crown Props., 375 N.W.2d at 699-700. We noted that when read together the plaintiffs filings “substantially met the rule [1.944] requirements of an application for reinstatement.” Id. at 700. Not only did the substance of the plaintiffs pleadings evidence an effort to preserve the case for trial, more significantly, the pleadings set forth “compelling grounds” for reinstatement. Id. In contrast, the plaintiff here, as we have pointed out, made no showing of grounds warranting reinstatement. Therefore, we cannot say that he substantially complied with the requirements for reinstatement set forth in rule 1.944(6). Cf. Ray v. Merle Hay Mall, Inc., 621 N.W.2d 696, 698 (Iowa Ct.App.2000) (rejecting argument that parties’ stipulation to a trial date beyond dismissal date was in effect a stipulation for a continuance under rule 1.944, distinguishing Gold Crown and noting that setting a trial date was ministerial whereas party was required to set forth reasons for a continuance). For these reasons, the pretrial order did not operate to reinstate the plaintiffs suit. See generally Greene, 315 N.W.2d at 782 (“Because the stakes are high, and the results harsh, the formalities prescribed to implement the rule [1.944] procedure must be strictly observed.”). Accordingly, the matter stood dismissed unless there is merit to the plaintiffs es-toppel argument, an issue we now address.

V. Is the Defendant Estopped From Contending the Case Was Not Dismissed or Was Reinstated?

Relying on the doctrine of judicial estoppel, the plaintiff contends the defendant’s stipulation estops the defendant from taking the position that this suit was automatically dismissed or that it was not reinstated upon the court’s approval of the pretrial order. “The doctrine of judicial estoppel ‘prohibits a party who successfully and unequivocally asserts a position in one proceeding from asserting an inconsistent position in a subsequent proceeding.’ ” Roach v. Crouch, 524 N.W.2d 400, 403 (Iowa 1994) (citation omitted); accord Wilson v. Liberty Mut. Group, 666 N.W.2d 163, 166 (Iowa 2003). Judicial estoppel also applies when inconsistent positions otherwise meeting the requirements of this doctrine are taken in the same proceeding. See 28 Am.Jur.2d Estoppel and Waiver § 74, at 498-99 (2000).

We think the district court correctly determined this doctrine does not apply. There is no evidence in the record that the defendant ever successfully and unequivocally took the position that this case had not been automatically dismissed. See Graber v. Iowa Dist. Ct., 410 N.W.2d 224, 228 (Iowa 1987) (“[A] fundamental feature of the doctrine of judicial estoppel is the successful assertion of the inconsistent position in a prior action. Absent judicial acceptance of the inconsistent position, application of the rule is unwarranted because no risk of inconsistent, misleading results exists.”). As we have previously discussed, the clerk’s dismissal list was of no legal effect and the defendant’s agreement that the case be removed from this list could not and did not prevent the case from being dismissed. In fact, the case had already been dismissed by operation of law when the parties signed the stipulated pretrial order, and there was nothing the parties or the court could do after the fact to undo the dismissal short of a formal reinstatement of the case. See Koss v. City of Cedar Rapids, 300 N.W.2d 153, 157 (Iowa 1981) (“Absent an application and order for continuance, neither the district court nor the supreme court has power to avoid [dismissal] once the procedure was set in motion by the clerk’s [try-or-dismiss] notice.”). Therefore, to the extent the defendant can be held to have asserted the case had not been dismissed by virtue of his agreement to the pretrial order, that position was not successful.

Nor does the doctrine of judicial estop-pel apply to preclude the defendant from arguing that the case was not reinstated in January 2001. As the district court correctly observed, neither party intended the pretrial order to operate as a reinstatement of the matter. Therefore, the defendant’s position that the case was not reinstated by the court’s pretrial order is not inconsistent with the parties’ earlier stipulation to remove the case from the clerk’s dismissal list.

The plaintiff complains that had the clerk sent a notice of dismissal in January 2001, or had the defendant’s attorney asserted at that time that the case had already been automatically dismissed, he would have taken action within six months of the dismissal to have the case reinstated. While we do not approve of the defendant’s strategic silence, we think the defendant simply agreed to what the plaintiff requested. Unfortunately for the plaintiff, that agreement — to remove the case from the clerk’s dismissal list — had no legal consequence. The plaintiff cannot now blame the defendant because this agreement did not accomplish what the plaintiff thought it would or fault the defendant for not advising the plaintiff that he should instead seek to have the case reinstated. Ultimately the responsibility for ensuring this case was not dismissed for want of prosecution or was properly reinstated rested with the plaintiff, not with the clerk of court or with the defendant. See Greif, 404 N.W.2d at 154 (“The responsibility for keeping a case alive must rest squarely on the shoulders of the party seeking to avoid dismissal.”); Baty, 259 Iowa at 1023, 147 N.W.2d at 208 (same). The plaintiff chose to ignore the rules and procedures governing the prompt prosecution of this case and cannot now be saved from the consequences of that conduct under the theory of judicial estoppel. See generally Greene, 315 N.W.2d at 782 (“Because the stakes are high, and the results harsh, the formalities prescribed to implement the rule [1.944] procedure must be strictly observed.”).

VI. Was the Supreme Court’s Rejection of the Defendant’s Application for Interlocutory Appeal an Adjudication of the Correctness of the First Order Ruling the Case Had Not Been Dismissed?

As noted earlier, after the district court’s rejection of the defendant’s first motion to dismiss, this court denied the defendant’s application for interlocutory appeal. The plaintiff claims this court’s ruling indicates our agreement with the district court’s decision. The reasoning underlying this claim is as follows: If the case had been automatically dismissed, the district court’s ruling would have been a final judgment and there would have been no legal basis for this court to reject the appeal. Alternatively, the plaintiff contends this court’s decision not to hear the appeal indicates our agreement with the district court’s ruling that the ease was still pending.

These arguments must fail. The plaintiffs first argument ignores the fact that the district court had ruled the case was not automatically dismissed. Until corrected by the district court or reversed on appeal, that ruling kept the plaintiffs case alive. Therefore, the district court’s ruling on the defendant’s first motion to dismiss was interlocutory and could be reviewed by an appellate court only if permission to appeal were granted. Therefore, this court’s handling of the case when an interlocutory appeal was sought was entirely consistent with the status of the case at that time and did not rest on our independent conclusion that the case had not been automatically dismissed.

Likewise, this court’s denial of the defendant’s application for interlocutory appeal cannot be interpreted as indicating our agreement with the district court’s ruling. Our decision to deny the application means that we will not address the merits of the district court’s ruling. Therefore, it is incorrect to interpret the denial as a decision on the merits.

VII. Summary.

There is substantial evidence in the record to support the trial court’s finding that a try-or-dismiss notice was sent by the clerk of court to the parties’ counsel. Therefore, the case was automatically dismissed pursuant to rule 1.944(2) on January 1, 2001, when the plaintiff failed to have the matter continued before that date. The January 3, 2001, stipulated order removing the case from the clerk’s dismissal list was ineffective to prevent dismissal as the case had already been automatically dismissed on January 1, 2001, and no further action was required by the clerk or the court to effectuate the dismissal.

In addition, the pretrial order did not serve to reinstate the case. The order expressly sought to prevent dismissal, not to have the matter reinstated. Moreover, the court cannot interpret the stipulation as a request for reinstatement for two reasons. First, it is undisputed that the plaintiff did not subjectively intend to seek reinstatement at that time and did not request the defendant to stipulate to reinstatement. Second, the stipulated pretrial order did not substantially comply with the requirements for an application to reinstate. Consequently, this case was not reinstated by the court’s pretrial order.

The defendant was not estopped from asserting the case had been automatically dismissed and not reinstated.

The defendant did no more than comply with the plaintiffs request to remove the case from the clerk’s dismissal list. Judicial estoppel cannot rest on the defendant’s failure to volunteer an opinion that the stipulated action would not save the plaintiffs case.

Finally, this court’s denial of the defendant’s application for interlocutory appeal from the district court’s ruling on his first motion to dismiss did not operate as an adjudication on the merits of the district court’s ruling or otherwise indicate the correctness of that ruling.

Finding no basis for reversal, we affirm.

AFFIRMED.

      . Although the merits of the plaintiff’s suit against the defendant were immaterial to the issues raised on appeal, approximately 277 pages in a 355-page appendix were devoted to summary judgment pleadings addressing the merits of the plaintiff's claim for damages! (Rule 1.944 applies to meritorious lawsuits and unmeritorious lawsuits alike.) Similarly, an extensive factual background unrelated to the issues to be decided in this appeal was incorporated in the appellant’s brief. The inclusion of these materials unnecessarily complicated our review of this case. Parties are urged in the future to limit the materials in the appendix to those pertinent to the issues under review.

      . The plaintiff asserts in his brief that the present case “calls for the application of the doctrine of judicial estoppel (or just estop-pel).'' Despite the reference to "just estop-pel," the plaintiff directed his argument solely to the theory of judicial estoppel. It is unclear whether the other estoppel theory to which the plaintiff referred was promissory estoppel or equitable estoppel because the plaintiff did not discuss the elements of any other estoppel theory or cite any case support for another type of estoppel. We conclude, therefore, that the plaintiff's casual reference to "just estoppel” is not sufficient to raise an additional estoppel theory for appellate review. See Schreiber v. State, 666 N.W.2d 127, 128 (Iowa 2003) ("[WJhile the petitioners allude to equal protection in one sentence in their appellate brief, they do not present an argument on the issue, and it could be deemed waived.”); Soo Line R.R. v. Iowa Dep't of Transp., 521 N.W.2d 685, 691 (Iowa 1994) (stating "random mention of [an] issue, without elaboration or supportive authority, is insufficient to raise the issue for [reviewing court’s] consideration”). Therefore, we consider only the claim of judicial estoppel and express no opinion on whether the doctrines of promissory estoppel or equitable estoppel would have warranted relief in this matter. See Iowa R.App. P. 6.14(l)(c) ("Failure in the brief to state, to argue or to cite authority in support of an issue may be deemed waiver of that issue.”).


source: Caselaw Access Project

author: /s/Sam Hanson Associate Justice

license: Public Domain

text:
    Clint M. WEBB, Respondent, v. HERCULES, INC./BURNS PHILIP, INC., and Broadspire, f/k/a Kemper Services, Relators, and Twin Cities Bakery Drivers Health & Welfare Fund, Intervenor.
    No. A04-1736.
    Supreme Court of Minnesota.
    Nov. 23, 2004.
   ORDER

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that the decision of the Workers’ Compensation Court of Appeals filed August 16, 2004, be, and the same is, affirmed without opinion. See Hoff v. Kempton, 317 N.W.2d 361, 366 (Minn.1982) (summary dispositions have no precedential value because they do not commit the court to any particular point of view, doing no more than establishing the law of the case).

Employee is awarded $1,200 in attorney fees.

BY THE COURT:

/s/Sam Hanson Associate Justice

ANDERSON, G. BARRY J., took no part in the consideration or decision of this case.


author: /s/ G. Barry Anderson Associate Justice

text:
    John A. AHLES, Relator, v. JOHN A. DALSIN & SONS, Self-Insured, adm’d by Berkley Risk Administrators Company, Respondents, and McGrath Sheet Metal/Minneapolis Convention Center, and Zurich North American Insurance Group, Respondents, and Sheet Metal # 10 Benefit Fund, Twin Cities Anesthesia Associates, and Minnesota Department of Labor and Industry/VRU, Intervenors.
    No. A04-1648.
    Supreme Court of Minnesota.
    Nov. 23, 2004.
   ORDER

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that the decision of the Workers’ Compensation Court of Appeals filed August 9, 2004, be, and the same is, affirmed without opinion. See Hoff v. Kempton, 317 N.W.2d 361, 366 (Minn.1982) (summary dispositions have no precedential value because they do not commit the court to any particular point of view, doing no more than establishing the law of the case).

BY THE COURT:

/s/ G. Barry Anderson Associate Justice


author: HALBROOKS, Judge.

text:
    STATE of Minnesota, Respondent, v. Todd Allen JOHNSON, Appellant.
    No. A04-176.
    Court of Appeals of Minnesota.
    Nov. 23, 2004.

      Mike Hatch, Attorney General, St. Paul, MN, and Amy Klobuchar, Hennepin County Attorney, Donna J. Wolfson, Assistant County Attorney, Minneapolis, MN, for respondent.
    John M. Stuart, State Public Defender, Jodie L. Carlson, Assistant Public Defender, Minneapolis, MN, for appellant.
    Considered and decided by HALBROOKS, Presiding Judge, ROBERT H. SCHUMACHER, Judge, and HUSPENI, Judge.

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

   OPINION

HALBROOKS, Judge.

Appellant Todd Allen Johnson challenges his conviction and sentence for criminal vehicular homicide, arguing that (1) the district court erred in denying his pretrial motion to suppress evidence and (2) the district court erred in imposing an upward durational departure at sentencing after denying appellant’s request to withdraw his guilty plea. We affirm the district court’s denial of appellant’s motion, but reverse the sentence and remand for reconsideration consistent with Blakely v. Washington, — U.S. -, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).

FACTS

On the evening of May 25, 2003, at approximately 10:20 p.m., two Minneapolis police officers responded to a report of a motor vehicle accident at the intersection of Fremont Avenue and 34th Street. At the scene, the officers discovered that a blue Grand Marquis automobile had struck a taxi cab, killing the cab’s driver and injuring its five passengers. The police learned from witnesses that the driver of the Grand Marquis had left the scene on foot. Based on their initial investigation, the officers subsequently concluded that the Grand Marquis had approached the intersection at a high rate of speed, run a stop sign, and collided with the taxi.

A woman at the scene told the officers that she had observed a Grand Marquis going approximately 60 miles per hour past her home on 34th Street toward Fremont Avenue just before hearing a crash; she then ran to the accident site and observed the driver of the Grand Marquis get out of the vehicle, holding his chest. When she approached the driver to urge him to stay at the scene, she noticed that he “reeked” of alcohol. The driver then returned to the vehicle to retrieve a bottle and walked away. A second individual who lives near the intersection told the police that she heard the crash, went to the scene, and saw the driver of the Grand Marquis exit the vehicle. As the driver approached the woman, she saw that he was holding his chest and “looked hurt.” The woman told the man that someone had called 911, and the man replied, “Are they on their way? I don’t want no part of ‘em. I don’t want no police.” A third woman saw the Grand Marquis approaching the intersection, also heard the crash, went to the accident scene, and saw the driver, who appeared “drunk.”

Insurance papers discovered inside the Grand Marquis by the officers indicated that the vehicle was owned and insured by appellant and that appellant resided on Dupont Avenue in Minneapolis. The officers then drove to the address indicated on the insurance papers.

The Dupont Avenue residence is a duplex with an upstairs unit, a downstairs unit, and a common entryway; appellant lived in the downstairs unit. The police banged on the outside door leading to the common area and on several windows of the downstairs unit and loudly announced their presence, but received no response. They also tried and failed to contact the residents by telephone. A neighbor alerted by the noise approached and told the police that she had seen appellant leaving his residence earlier that evening driving a car similar to the one police told her had been involved in the accident at the intersection of Fremont Avenue and 34th Street. The neighbor also stated that a light inside appellant’s unit had just been turned off and that she believed the unit to be occupied at that moment. The police then kicked in the outside door and entered the common area.

Once inside the common area, the officers banged on the door of the downstairs unit and identified themselves as police. When a woman opened the door, the officers told her that they believed that appellant had been involved in a serious accident. The woman said that appellant was sleeping. Three officers entered the unit. While one officer spoke with the woman in the living room, the other officers located appellant in the bedroom. Police also brought two of the witnesses from the accident scene to the Dupont Avenue residence. Both witnesses identified appellant as the driver of the Grand Marquis. Police then transported appellant to the Hen-nepin County Medical Center, where a blood test revealed that his alcohol concentration was .13.

The state charged appellant with one count of criminal vehicular homicide in violation of Minn.Stat. § 609.21, subd. 1(7) (2002). He pleaded not guilty and filed a motion to suppress all evidence obtained as the result of the warrantless entry of his residence. The district court denied the motion, reasoning that the warrantless entry was justified both as a medical emergency and by probable cause and exigent circumstances (the need to preserve alcohol-concentration evidence).

Appellant waived his right to a jury trial and submitted the matter to the district court on stipulated facts pursuant to State v. Lothenbach, 296 N.W.2d 854 (Minn.1980). The parties agreed that appellant would receive the “bottom of the box” sentence, that is, the lowest presumptive guidelines sentence based upon appellant’s criminal-history score. In appellant’s case, the “bottom of the box” was 98 months. The district court found appellant guilty and sentenced him to 120 months in prison, reasoning that an upward departure was warranted by appellant’s failure to abide by the terms of his conditional release and the fact that the victims of the accident included children under the age of six and a pregnant woman. This appeal follows.

ISSUES

I. Did the district court err in denying appellant’s motion to suppress the evidence obtained as a result of the war-rantless search of his home?

II. Did the district court violate appellant’s right to a jury trial by imposing an upward durational departure based on judicial findings?

ANALYSIS

I.

Appellant argues that the district court erred by denying his pretrial motion to suppress the evidence seized following the warrantless entry of his residence. We review pretrial motions to suppress evidence by independently considering the facts to determine, as a matter of law, whether the district court erred in its decision. State v. Harris, 590 N.W.2d 90, 98 (Minn.1999).

A warrantless search of a person’s home is prohibited by the Fourth Amendment to the United States Constitution and by article I of the Minnesota Constitution. U.S. Const, amend. IV; Minn. Const, art. I, § 10. Warrantless searches and seizures are per se unreasonable unless permitted by one of a limited number of exceptions, including the presence of probable cause that an individual has committed a crime and exigent circumstances related to its investigation. Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967); State v. Othoudt, 482 N.W.2d 218, 223 (Minn.1992). The state bears the burden of showing that at least one of the exceptions applies in order to avoid suppression of the evidence acquired from the warrant-less search. State v. Metz, 422 N.W.2d 754, 756 (Minn.App.1988).

Here, the district court concluded that the officers’ warrantless entry of appellant’s residence was justified by probable cause to believe that he had committed criminal vehicular operation involving alcohol and the exigent need to ascertain appellant’s alcohol concentration before evidence of his intoxication began to diminish. In order to establish probable cause, the police must show that they “reasonably could have believed that a crime has been committed by the person to be arrested.” State v. Paul, 548 N.W.2d 260, 264 (Minn.1996) (quotation omitted). “The probable-cause standard is an objective one that considers the totality of the circumstances.” State v. Olson, 634 N.W.2d 224, 228 (Minn.App.2001), review denied (Minn. Dec. 11, 2001). When more than one officer is involved in an investigation, the collective knowledge of the police force is imputed to the arresting officer for the purpose of determining if sufficient probable cause exists for an arrest. State v. Riley, 568 N.W.2d 518, 523 (Minn.1997). We “independently review[] the facts to determine the reasonableness of the conduct of police” concerning the existence of probable cause. Id.

The probable cause needed for police to conduct a warrantless nonconsensual blood test during an investigation of a person for criminal vehicular operation resulting in death is “probable cause to believe that the crime of criminal negligence has been committed and probable cause to believe not that the defendant is intoxicated but that administration of the [blood] test will result in the discovery of evidence that will aid in the prosecution of that crime.” State v. Speak, 339 N.W.2d 741, 745 (Minn.1983). Here, witnesses told police that they had seen an individual who appeared intoxicated and smelled of alcohol exit a vehicle that had been involved in a fatal accident and leave on foot after stating that he didn’t want to encounter the police. The police discovered at the scene that the Grand Marquis belonged to appellant and reasonably inferred that appellant had been driving the car at the time of the accident. Cf. State v. Pike, 551 N.W.2d 919, 922 (Minn.1996) (holding that “[w]hen an officer observes a vehicle being driven, it is rational for him or her to infer that the owner of the vehicle is the current operator”). When the officers arrived at appellant’s house, they were unable to make contact with the individual(s) they believed to be inside; they were also told by a neighbor that appellant had left home earlier that evening driving a vehicle similar to the Grand Marquis. On this record, we conclude that the police had probable cause to believe that appellant had committed criminal vehicular operation involving alcohol.

Exigent circumstances can be established either by a single factor or “totality of the circumstances” analysis. State v. Gray, 456 N.W.2d 251, 256 (Minn.1990). We evaluate the facts found by the district court to determine, as a matter of law, whether exigent circumstances existed. Id. One single-factor exigent circumstance — and the one referenced by the district court here — is the “imminent destruction of evidence.” Minnesota v. Olson, 495 U.S. 91, 100, 110 S.Ct. 1684, 1690, 109 L.Ed.2d 85 (1990).

Appellant argues that the police did not need to preserve evidence of his alcohol concentration because he was ultimately only charged with leaving the scene of a fatal accident and not with any alcohol-related vehicular offense. But the ultimate charge is not relevant to a determination of whether the police objectively believed that evidence would be lost, and the investigation compromised, unless they determined appellant’s alcohol concentration within a reasonable time following the accident. The possible destruction of evidence created an exigent circumstance that justified the warrantless entry of appellant’s residence.

A totality-of-the-circumstances analysis should consider the factors set forth in Dorman v. United States, 435 F.2d 385, 392-93 (D.C.Cir.1970), which include

(a) whether a grave or violent offense is involved; (b) whether the suspect is reasonably believed to be armed; (c) whether there is strong probable cause connecting the suspect to the offense; (d) whether police have strong reason to believe the suspect is on the premises; (e) whether it is likely the suspect will escape if not swiftly apprehended; and (f) whether peaceable entry was made.

State v. Hummel, 483 N.W.2d 68, 72-73 (Minn.1992) (quotation omitted). Although the police did not believe appellant to be armed at the time they entered his home, the other Dorman factors are satisfied here. It is true that the entry was not peaceable, but the police made a forcible entry only after trying repeatedly and at length to enter the residence peaceably. The warrantless entry of appellant’s residence was justified by the exigent-circumstances exception to the warrant requirement.

Because we conclude that the warrant-less search was justified by probable cause and exigent circumstances, we do not reach the issue of whether the search was also valid pursuant to the doctrine of medical emergency.

II.

Appellant challenges his sentence, arguing that (1) the district court’s refusal to accept the “bottom of the box” sentencing agreement entitled him to withdraw his jury-trial waiver and (2) the upward dura-tional departure imposed on him based on the district court’s findings of aggravating factors violates the Supreme Court’s holding in Blakely v. Washington, 124 S.Ct. 2531 (2004).

Appellant contends that the district court’s failure to abide by the parties’ sentencing agreement entitled him to withdraw his consent to a Lothenbach stipulated-facts trial for the same reasons that a defendant must be allowed to withdraw a guilty plea where the district court violated the plea agreement at sentencing. See State v. Tyska, 448 N.W.2d 546, 549 (Minn.App.1989) (holding that a defendant has a right to withdraw his guilty plea if the plea agreement is violated by imposition of a sentence other than that promised in the agreement). But a Lothenbach proceeding does not involve a guilty plea. State v. Verschelde, 595 N.W.2d 192, 194-95 (Minn.1999). “A true Lothenbach stipulation does not involve a concession of guilt, and is intended only to preserve the defendant’s right of appeal while avoiding an unnecessary jury trial.” State v. Halseth, 653 N.W.2d 782, 786 n. 2 (Minn.App.2002). We therefore disagree with appellant’s contention that an agreement to a stipulated-facts trial is “the functional equivalent of a guilty plea” and observe that pursuant to Minn. R.Crim. P. 26.01, subd. 1(3), appellant was entitled to withdraw his waiver of a jury trial “at any time before the commencement of the trial.” Because appellant did not attempt to withdraw his Lothenbach agreement until after the trial, he has waived the right to challenge the agreement.

As to the departure, a decision to depart from the sentencing guidelines will not be reversed absent a clear abuse of discretion. State v. Givens, 544 N.W.2d 774, 776 (Minn.1996). But appellant’s challenge to the sentence imposed on him under the sentencing guidelines raises a constitutional issue: whether, under the Sixth Amendment, as interpreted in Blakely, appellant was entitled to a jury determination, based on proof beyond a reasonable doubt, of the presence of these or any other aggravating factors used to increase his sentence. In reviewing a constitutional challenge, this court applies a de novo standard of review. State v. Wright, 588 N.W.2d 166, 168 (Minn.App.1998).

The district court sentenced appellant to an executed sentence of 120 months, which represented an upward durational departure from the presumptive executed sentence of 98 months. To support the departure, the court cited appellant’s failure to abide by the terms of his conditional release and the fact that the victims of the accident included children under the age of six and a pregnant woman. See Minn. Sent. Guidelines II.D.2.b. After this appeal was briefed, the United States Supreme Court issued Blakely, which applied the rule announced in Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 2362-63, 147 L.Ed.2d 435 (2000), that any fact that increases the penalty for a crime beyond the statutory maximum must be submitted to the jury and proved beyond a reasonable doubt. Blakely, 124 S.Ct. at 2536. Under Blakely, “the relevant ‘statutory maximum’ is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings.” Id. at 2537 (emphasis omitted). Blakely consequently held that under Washington’s determinate sentencing scheme, any upward sentencing departures based on the judge’s findings, rather than those of the jury, are invalid under the Sixth Amendment. Id. at 2538.

After Blakely issued, we granted the parties leave to submit supplemental briefs on the question of whether that case applies to durational sentencing departures imposed in the context of a Lothenbach stipulated-facts trial. We now hold that it does.

This court has recently ruled that in the context of a sentence imposed pursuant to a guilty plea, Blakely requires that the reasons relied upon by a district court as bases for departing durationally from the guidelines must be based solely on facts admitted by the defendant in the plea. State v. Conger, 687 N.W.2d 639, 644-45 (Minn.App.2004). We have also ruled that Blakely applies to durational sentencing departures imposed following a jury trial resulting in a guilty verdict, prohibiting the judge from imposing a departure on the basis of facts not reflected in the jury verdict or admitted by the defendant. See State v. Saue, 688 N.W.2d 337, 345, 2004 WL 2453211, at *-(Minn.App. Nov. 2, 2004).

The “Lothenbach procedure calls ‘for the defendant to enter a plea of not guilty, waive his right to a jury trial, and then stipulate to the prosecution’s case.’ ” Verschelde, 595 N.W.2d at 195 (quoting State v. Lothenbach, 296 N.W.2d 854, 857 (Minn.1980)). As such, the procedure is substantively distinct from a guilty plea, in which a factual basis is established, or a jury trial, in which the jury determines guilt or innocence based on contested evidence. But the critical consideration in determining the applicability of Blakely to a Loth-enbach procedure is identical to that presented by either a guilty plea or a jury trial: whether any sentencing facts “essential to lawful imposition of the [sentence],” Blakely, — U.S. at -, 124 S.Ct. at 2540, were decided by the judge and whether the procedure preserved the defendant’s fundamental right, under Blakely, “to have all sentencing facts decided by the jury.” Saue, 688 N.W.2d at 344. The Lothenbach procedure requires a waiver of the right to a jury trial on the elements of the offense. Implicit in that waiver, however, is not a waiver of the right of a jury to determine aggravating factors relating to sentencing.

This matter presents a typical Lothen-bach procedure in that the defendant, who stipulated to the state’s case, did not also stipulate to the additional facts found by the court at sentencing in support of the sentencing departure. The departure imposed in this case therefore involves the judicial fact-finding role prohibited by Blakely. We conclude that the imposition of an upward durational departure based on judicial findings following a Lothenbach trial violates the defendant’s Sixth Amendment right to a jury trial.

The durational departure is therefore reversed, and this matter is remanded to the district court for resentencing in a manner not inconsistent with this opinion in such proceedings as the district court deems appropriate.

DECISION

The district court properly concluded that the warrantless entry of appellant’s residence was justified by exigent circumstances. The district court’s imposition of an upward durational departure based on judicial findings violated appellant’s Sixth Amendment right to trial by jury. We remand for resentencing.

Affirmed in part, reversed in part, and remanded.


author: ROBERT H. SCHUMACHER, Judge.

text:
    Roselawn CEMETERY, Appellant, v. CITY OF ROSEVILLE, Respondent, Roseville Neighbors for Responsible Growth, intervenor, Respondent.
    No. A04-672.
    Court of Appeals of Minnesota.
    Nov. 23, 2004.

      Thomas J. Radio, Hinshaw & Culbertson L.L.P., Minneapolis, MN, for appellant.
    George C. Hoff, Justin L. Templin, Hoff, Barry & Kuderer, P.A., Eden Prairie, MN, for respondent City of Roseville.
    Thomas H. Goodman, Siegel, Brill, Gre-upner, Duffy & Foster, P.A., Minneapolis, MN, for respondent Roseville Neighbors for Responsible Growth.
    Considered and decided by SCHUMACHER, Presiding Judge; STONEBURNER, Judge; and PARKER, Judge.

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

   OPINION

ROBERT H. SCHUMACHER, Judge.

Appellant Roselawn Cemetery challenges the district court’s entry of summary judgment in favor of respondent City of Roseville arguing the city acted arbitrarily, capriciously, or unreasonably when it denied Roselawn a conditional use permit to build a crematorium at its existing location. We affirm.

FACTS

In May 2001, Roselawn submitted an application to the city for a conditional use permit to place an 1800-square-foot crematorium on its property. Roselawn is located on the northeast corner of Lar-penteur Avenue and Victoria Street in Roseville. Roselawn is bordered to the north by “Reservoir Woods” and by residential homes to the east. A reservoir that provides the City of Saint Paul with water lies approximately 2,500 feet northeast of Roselawn. Roselawn’s property is in an area zoned R-l. Under the city’s zoning ordinances, operation of a crematorium in an R-l area requires a conditional use permit.

In July 2001, the Roseville Planning Commission voted to recommend approval of the conditional use permit subject to certain conditions and the matter was forwarded to the city council. Approximately two weeks later, the Roseville City Council held an open meeting to discuss Rose-lawn’s application. The city requested Anne Jackson, an engineer with the Minnesota Pollution Control Agency, Ernie Czirok from All Crematory — a major supplier of crematory furnaces — and two individuals from the nearby Forest Lawn Crematorium attend the meeting.

Included in the record before the city council was a report from Industrial Equipment & Engineering Co., which described the regulated pollutants emitted from crematoriums. The report stated that regulated pollutants include carbon monoxide, hydrogen chloride, and metals (mercury, lead, cadmium), all of which can be toxic to the human body in high doses. The report also stated that crematoriums emit dioxins and furans, which “are quite hazardous even in relatively small amounts.” Additional materials submitted to the city council stated that the cremation of persons who have received bra-chytherapy, a type of cancer treatment, would emit radioactive material.

The likely emission of mercury from the crematorium was discussed at length during the meeting. Jackson stated that mercury is “not toxic to you as you first get it, the problem is, it builds up in our environment, and its presence in the environment is the problem we face.” Jackson also stated that there is no “readily acceptable method of adding control equipment to the crematory itself to deal with mercury.” When questioned about the long-term effect of mercury build-up, Jackson stated, “Mercury is a neurotoxin. At very low thresholds we’re concerned about the fetal development in pregnant women.”

A resident, who formerly worked in the safety equipment industry, presented tables from “a quasi-government agency called the Congress of Industrial Hygienists.” According to these tables, both mercury and hydrogen chloride “are considered to be IDHL, immediately dangerous to health and life.” The resident also testified that under the statistics provided to the city, the crematorium would release 22 pounds of hydrogen chloride per year and 1/3 of a pound of mercury per year. Another resident, referring to table listing the EPA’s drinking water standards, stated, “Dioxins they prefer to see as a goal, zero, as the amount in drinking water, and ... [.]000003 parts per million is the maximum allowed.”

During the meeting, there were questions raised regarding the radioactive particles that would result from the cremation of persons who had received brachythera-py. Brachytherapy is a procedure used to treat cancer where radioactive “seeds” are implanted in or around a cancerous tumor. Patrick Hogan of the Forest Lawn Memorial Park Crematorium stated that his crematorium has never had any problem with radioactive particles because no cremations are performed until the “controller” of the body to be cremated signs an authorization stating that there is no radioactive material in the body. But a local resident whose husband had recently been cremated stated, “Nobody asked me if there was any radioactive material. He died of cancer. So it’s not always done.”

In August 2001, the city council voted to deny Roselawn a conditional use permit, finding that the emission of pollutants from the crematorium will negatively affect the character of the neighborhood and that there is an inability to fashion practical terms and conditions for the proposed use to protect the general public health, safety and welfare of the neighborhood and community. The city council made the following findings:

3. The proposed use will emit “criteria” pollutants and “toxic” pollutants (Source: Materials submitted by applicant, All Crematory, Anne Jackson et al.).
4. Emissions of these toxic materials is not practically avoidable or controllable under current cremation processes (Source: Environmental information from Industrial Equipment and Engineering Co., 6/21/2001).
5. The emission of mercury, hydrogen chloride, and other pollutants from the proposed crematory adds to the risk of exposure to these public health dangers for the residents, businesses and users of public facilities in the vicinity of the proposed crematory.
6. Currently, the cremation rate in the United States is approximately 24. Within the next 10 years it is anticipated that the demand for cremation services will increase nearly 70. (Source: Letter of Erny Czirok dated June 29, 2001).
7. In Minnesota cremations have increased from 1,622 in 1969 to 10,950 in 1999, and Ramsey County statistics parallel the increased use of cremation (Source: MN Department of Health, City Community Development Staff Research, 6/14/01).
8. For 2000, the statewide cremation percentage was 30.30 or about 32 per day (Source: fax from Timothy J. Koch dated 7/23/01).
9. Updated Federal and state standards regarding crematory emissions, location, and operating procedures have not yet been promulgated to adequately address the growing use of cremation, nor developments in medical science such as brachytherapy that that could introduce an additional environmental health threat, in spite of the 1990 Federal Clean Air Act amendments that require the Environmental Protection Agency to develop new source performance standards and emission guidelines for crematories.
10. The required emission limits for acid gases (sulfur dioxide and hydrogen chloride), particulate matter, opacity, metals (including cadmium, lead and mercury), organics (dioxins and furans), carbon monoxide and nitrogen oxides from crematories have not been established in part due to limited information available to environmental protection agencies (Source IEE Co./All Crematory).

Roselawn filed a declaratory judgment action in district court seeking judgment requiring the city to issue it a conditional use permit and damages. The city moved for summary judgment on the grounds that it acted reasonably in denying Rose-lawn’s request and the city was immune from the damage claim. Shortly thereafter, Roselawn moved for summary judgment on its behalf. The district court granted summary judgment to the city.

ISSUE

Was the city’s decision to deny Rose-lawn a conditional use permit arbitrary, capricious, or unreasonable?

ANALYSIS

On appeal from a district court’s decision affirming the municipality’s denial of a conditional use permit, this court independently reviews the record and the municipality’s decision “without affording any special deference” to the district court’s review. Scott County Lumber Co. v. City of Shakopee, 417 N.W.2d 721, 726 (Minn.App.1988), review denied, (Minn. Mar. 23, 1988).

This court’s review of city council’s decision to deny a conditional use permit is limited to determining whether the denial of the conditional use permit was unreasonable, arbitrary, or capricious. Honn v. City of Coon Rapids, 313 N.W.2d 409, 416-17 (Minn.1981); Molnar v. County of Carver Bd. of Cmm’rs, 568 N.W.2d 177, 181 (Minn.App.1997). Pure questions of law, however, are reviewed de novo. Nordmarken v. City of Richfield, 641 N.W.2d 343, 346 (Minn.App.2002), review denied (Minn. June 18, 2002).

A city’s denial that is based on a legally sufficient reason and supported by a factual basis is not unreasonable, arbitrary, or capricious. C.R. Invs., Inc. v. Village of Shoreview, 304 N.W.2d 320, 325 (Minn.1981). On appeal we affirm a municipality’s decision so long as any one stated reason shows its decision was not arbitrary or capricious. Trisko v. City of Waite Park, 566 N.W.2d 349, 352 (Minn.App.1997), review denied (Minn. Sept. 25, 1997). Appellate courts defer to a municipality’s decision when the factual basis for the denial has even the “slightest validity.” White Bear Docking & Storage, Inc. v. City of White Bear Lake, 324 N.W.2d 174, 176 (Minn.1982). The permit applicant has the burden to persuade the appellate court that the municipality’s reasons for denial of the conditional use permit are impermissible. Hubbard Broad., Inc. v. City of Afton, 323 N.W.2d 757, 763 (Minn.1982).

In 1965 the legislature enacted the Municipal Planning Act (MPA), currently codified at Minn.Stat. §§ 462.351-.365 (2002), which provided “municipalities the authority to engage in comprehensive municipal planning activities.” Nordmarken, 641 N.W.2d at 347. Under the MPA:

The governing body may by ordinance designate certain types of developments, including planned unit developments, and certain land development activities as conditional uses under zoning regulations. Conditional uses may be approved by the governing body or other designated authority by a showing by the applicant that the standards and criteria stated in the ordinance will be satisfied.

Minn.Stat. § 462.3595, subd. 1 (emphasis added). This language unambiguously places the burden on the applicant to prove the proposed use will conform to a city’s stated standards and criteria for the issuance of a conditional use permit. See Mut. Serv. Cas. Ins. Co. v. League of Minn. Cities Ins. Trust, 659 N.W.2d 755, 760 (Minn.2003) (stating “where the intention of the legislature is clearly manifested by plain and unambiguous language, [appellate courts] have neither the need nor the permission to engage in statutory interpretation”).

Under the city’s zoning ordinances, the city council shall consider the following-criteria when reviewing an application for a conditional use permit:

1. Impact on traffic.
2. Impact on parks, streets and other public facilities.
3. Compatibility of the site plan, internal traffic circulation, landscaping and structures with contiguous properties.
4. Impact of the use on the market value of contiguous properties.
5. Impact on the general public health, safety and welfare.
6. Compatibility with the city’s comprehensive plan.

Roseville, Minn., City Code § 1013.01(D) (2001). Here, the city council determined:

As submitted by the applicant, the proposed use would negatively affect the character of the neighborhood due to the nature of the proposed use, the intensity of the proposed use, the proximity of residential properties, natural resources, and public facilities abutting or in close proximity to the subject parcel and the inability to fashion practical terms and conditions for the proposed use to protect the general health, safety and public welfare of the neighborhood and community.

It is well settled that protection of general public health, safety and welfare is a valid basis to deny a conditional use permit. See SuperAmerica Group, Inc. v. City of Little Canada, 539 N.W.2d 264, 267 (Minn.App.1995) (stating “city council may deny a conditional use permit only for reasons relating to the public health, safety, and general welfare or for incompatibility with a city’s land use plan”), review denied (Minn. Jan. 5, 1996). Roselawn argues that the city acted arbitrarily because it did not make findings on the other factors provided by the city ordinance. Once the city determined that it must deny the conditional use permit to protect general public health, safety, and welfare, making findings on the other factors was unnecessary. Further, since we affirm a city’s decision to deny a conditional use permit if any one stated reason is sufficient, we would not reach the city’s finding on any of the other factors before we would affirm the city’s decision. See Trisko, 566 N.W.2d at 352.

It is uncontested that the crematorium will emit certain “criteria” and “toxic” pollutants, including carbon monoxide, mercury and other metals, hydrogen chloride, dioxins, and furans. It is also uncontested that the cremation of individuals who had received a new cancer treatment would emit radioactive particles. It was Rose-lawn’s duty to show that it could operate a crematorium in such a manner that emissions of these pollutants in a residential neighborhood near a reservoir supplying drinking water would not negatively impact the general public health, safety, and welfare. See Minn.Stat. § 462.3595, subd. 1.

Roselawn argues it was entitled to a conditional use permit because Jackson’s opinion was the “only expert assessment” in the record, and she did not believe the operation of the crematorium would affect public health. A city council is free to disregard an expert’s opinion when it is presented with conflicting non-experts’ opinions, including those of area residents, so long as the reasons are concrete and based on observations, not merely on fear or speculation. Billy Graham Evangelistic Ass’n v. City of Minneapolis, 653 N.W.2d 638, 644-45 (Minn.App.2002), rev’d on other grounds, 667 N.W.2d 117 (Minn.2003); BBY Investors v. City of Maplewood, 467 N.W.2d 631, 635 (Minn.App.1991) (concluding “testimony” from neighborhood residents opposing the issuance of conditional use permit “effectively rebutted” applicant’s expert evidence), revieiv denied (Minn. May 23,1991).

Here, area residents stated that they had conducted research on the pollutants likely to be emitted and provided exhibits supporting their statements. One resident presented data from the EPA that the preferred level for dioxins in drinking water is zero parts per million. Another resident stated that under his calculations the crematorium would be responsible for 1/42 of the statewide emission of mercury each year. Another resident stated that the crematorium would emit 22 pounds of hydrogen chloride per year and 1/3 of a pound of mercury per year, both of which the Congress of Industrial Hygienists consider to be “immediately dangerous to health and life.” A fourth resident contradicted the suggestion that the emission of radioactive particles is prevented because the “controller” of the deceased’s body is questioned to ensure that crematoriums do not cremate a person who has received brachytherapy.

Furthermore, Jackson’s statements to the city council and the memoranda she submitted following the public hearing deal almost exclusively with the likely impact of the mercury emission. As the district court found, “While [Jackson’s] background in the area of pollution control is significant, she did not claim any expertise in the health science, and ... [she] deferred to the Minnesota Department of Health as to matters relating to the impact of pollutants on health.” But it is also uncontested that the crematorium will emit furans, dioxins, hydrogen chloride, radioactive particles, and other pollutants. The residents provided information based on scientific reports regarding the emission of these pollutants.

Roselawn has not pointed to any unrebutted information that was before the city council showing that emission of these other pollutants will not negatively affect the general public health, safety, or welfare. Jackson herself stated that the Minnesota Pollution Control Agency has “no responsibility for regulating radioactive material.” The city council is not required to ignore neighborhood concerns in making its decision, nor does it bear the responsibility of showing that the concerns are unfounded. See Swanson v. City of Bloomington, 421 N.W.2d 307, 313 (Minn.1988) (stating neighborhood feelings may be taken into account); see also Minn.Stat. § 462.3595, subd. 1 (placing burden on applicant).

Roselawn’s failure to meet its burden under Minn.Stat. § 462.3595, subd. 1, is best summed up by the concerns of Coun-cilmember Maschka who stated:

I’m still troubled with the issues that everything that we’ve seen, even when Miss Jackson was up here, she wasn’t definitive, nobody seems to be able to be definitive on this stuff. They seem to say, we think, and that’s fíne, I mean, it appears highly unlikely, but if you’ve got mercury poisoning, you don’t really care whether it was highly unlikely.... We don’t have certainty. The only certainty we have here, we have certain unknowns and it appears to me based on everything that we’ve seen that the certainty is not a pleasant thing.

A municipality’s denial of a conditional use permit requires both a factual determination about the proposed use and an exercise in discretion in determining whether to permit the use. Shetka v. Aitkin County, 541 N.W.2d 349, 352 (Minn.App.1995), review denied (Minn. Feb. 27, 1996). It is not the function of this court to replace the city council’s judgment with our own. Rather, this court defers to a municipality’s decision when the factual basis for the denial has even the “slightest validity.” White Bear Docking & Storage, 324 N.W.2d at 176.

The fact that the crematorium would emit toxic compounds, including radioactive particles if a person who had received brachytherapy was cremated, in a residential neighborhood 2,500 feet away from a reservoir supplying drinking water without Roselawn showing that emission of these toxic compounds will not affect the general health, welfare, and public safety provides a factual basis for the city to deny the conditional use permit. Because the city denied Roselawn’s application for a conditional use permit for a legally sufficient reason that has a factual basis in the record, we conclude the city’s decision was not unreasonable, arbitrary, or capricious. See C.R. Invs., 304 N.W.2d at 325.

We also disagree with Roselawn’s argument that the city acted unreasonably because it did not order an environmental assessment worksheet before denying the conditional use permit. The burden is on the applicant for a conditional use permit to show that the proposed use will meet the standards provided for in the zoning ordinance. Minn.Stat. § 462.3595, subd. 1. If Roselawn believed that such a worksheet would show that the operation of a crematorium would not present a danger to the community, the burden was on Ro-selawn to provide such information or at least to request that it be allowed to complete the assessment before the city council made its final decision.

DECISION

The city did not act unreasonably, arbitrarily, or capriciously when it denied Ro-selawn’s request for a conditional use permit.

Affirmed.