author: PETERSON, Judge.

text:
    James L. NOSKE, Appellant, v. Joseph FRIEDBERG, et al., Respondents.
    No. C7-02-1073.
    Court of Appeals of Minnesota.
    Feb. 5, 2003.

      Lawrence H. Crosby, Jay D. Olson, Crosby and Associates, St. Paul, MN, for appellant.
    William L. Davidson, Paul C. Peterson, Timothy J. O’Connor, Lind, Jensen, Sullivan & Peterson, Minneapolis, MN, for respondents.

      Considered and decided by PETERSON, Presiding Judge, WILLIS, Judge, and MULALLY, Judge.

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

   OPINION

PETERSON, Judge.

In January 1999, a federal district court granted appellant James L. Noske’s petition for a writ of habeas corpus and vacated Noske’s 1990 assault conviction,-based on the court’s conclusion that Noske had been denied his Sixth Amendment right to the effective assistance of trial counsel. Noske then brought a legal-malpractice action against respondent Joseph S. Fried-berg, who was Noske’s defense attorney during the 1990 assault prosecution, and Friedberg’s law firm, respondent Joseph S. Friedberg, Chartered. Upon respondents’ motion, the district court concluded that Noske’s claims were barred by the statute of limitations and dismissed Noske’s action. We reverse and remand.

FACTS

In August 1990, Noske was convicted of second-degree assault. He petitioned for postconviction relief, claiming that Fried-berg provided ineffective assistance at trial. The district court denied the petition, and Noske appealed from his conviction and from the denial of postconviction relief. This court affirmed the district court in all respects, and the supreme court denied further review. Noske v. State, No. CO-91-2486, 1992 WL 365990 (Minn.App. Dec.15, 1992), review denied (Minn. Jan. 28, 1993).

On May 25, 1993, Noske filed a petition for a writ of habeas corpus in federal district court seeking reversal of his assault conviction and relief from supervised release on the bases that he was denied due process of law by the trial court’s failure to instruct the jury as to self-defense and that he was denied effective assistance of counsel. In January 1999, the federal district court found that “contrary to the legal conclusion of the state court, [Noske] was denied his Sixth Amendment right to effective assistance of counsel and was prejudiced thereby.” Noske v. Stender, No. 4-93-518, slip op. at 22 (D.Minn. Jan. 8, 1999). Therefore, the federal court concluded, Noske was subject to custody in violation of the United States Constitution and entitled to federal habeas relief. Id. The court granted Noske’s petition for a writ of habeas corpus, vacated his 1990 assault conviction, and ordered that Noske may be retried on the assault charge within 90 days. Id. at 23. The state declined to retry Noske and did not appeal the order granting habeas relief.

In September 2001, Noske served respondents with a summons and complaint alleging legal malpractice. Noske claimed that Friedberg’s negligent acts caused Noske to be convicted of second-degree assault and incarcerated, prevented him from obtaining a license to practice law in Minnesota, and increased his sentence in a federal tax case. Noske also alleged breach of contract and misrepresentation.

Pursuant to Minn. R. Civ. P. 12.02, respondents moved to dismiss for failure to state a claim upon which relief can be granted, arguing that Noske’s claims accrued when Noske was convicted in 1990, and therefore, they were barred by the statute of limitations. The district court granted the motion and dismissed Noske’s claims.

ISSUE

Did Noske’s legal-malpractice action accrue when he was convicted?

ANALYSIS

The construction and applicability of statutes of limitations are questions of law reviewed de novo. Benigni v. County of St. Louis, 585 N.W.2d 51, 54 (Minn.1998).

“The statute of limitations for a legal malpractice action is six years.” Herrmann v. McMenomy & Severson, 590 N.W.2d 641, 643 (Minn.1999) (citing Minn.Stat. § 541.05, subd. 1(5)). A statutory limitation period begins to run when “the cause of action accrues.” Minn.Stat. § 541.01 (2002). A cause of action accrues when all of its elements exist to the extent that the claim could withstand a motion to dismiss for failure to state a claim upon which relief can be granted. Bonhiver v. Graff, 311 Minn. 111, 116-17, 248 N.W.2d 291, 296 (1976).

A claim is sufficient against a motion to dismiss * ⅜ * if it is possible on any evidence which might be produced, consistent with the pleader’s theory, to grant the relief demanded. To state it another way, under this rule a pleading will be dismissed only if it appears to a certainty that no facts, which could be introduced consistent with the pleading, exist which would support granting the relief demanded.

N. States Power Co. v. Franklin, 265 Minn. 391, 395, 122 N.W.2d 26, 29 (1963) (citation omitted). In the context of a legal-malpractice action, the supreme court has also stated, “A cause of action survives a motion to dismiss so long as ‘some’ damage has occurred as a result of the alleged malpractice.” Herrmann, 590 N.W.2d at 643 (citations omitted).

The district court determined that because a legal-malpractice action can survive a motion to dismiss when some damage has occurred as a result of the alleged malpractice, and a cause of action accrues when the claim can survive a motion to dismiss, Noske’s legal-malpractice action accrued when Noske suffered some damage. Therefore, the district court concluded, because the injuries that Noske alleged he suffered as a result of Friedberg’s malpractice began when Noske was convicted in 1990, 11 years before he initiated his lawsuit, Noske’s action was barred by the six-year statute of limitations.

Noske argues that although Fried-berg’s alleged malpractice occurred at his trial in 1990 and the damages that he alleged he suffered as a result of the malpractice included his conviction and incarceration in 1990, his malpractice action could not have survived a motion to dismiss until he obtained habeas corpus relief in 1999. Noske contends that he had no legally cognizable harm or damages before the federal court granted his petition for a writ of habeas corpus and vacated his conviction.

No Minnesota appellate court opinion has addressed whether a person who has been convicted of a crime and incarcerated has suffered legally cognizable harm for purposes of maintaining a legal-malpractice action against the person’s criminal-defense attorney. In making its decision, the district court could only rely on opinions in cases that did not involve allegations that a defendant in a criminal proceeding was convicted as a result of defense counsel’s legal malpractice. Applying those precedents to the facts of this case leads to the conclusion that the district court reached if, at the moment Noske was convicted, he suffered damage that would sustain a legal-malpractice action. Although we do not disagree with the district court’s determination that when Noske was convicted in 1990, he suffered some harm, we conclude that until Noske’s conviction was vacated in 1999, it was a legal conviction and, therefore, should not be recognized as damage that would sustain a cause of action for legal malpractice.

To prevail in a legal-malpractice action, a plaintiff must prove by a fair preponderance of the evidence (a) the existence of an attorney-client relationship; (b) acts amounting to negligence or breach of contract; (c) that such acts proximately caused the plaintiffs damages; and (d) that but for the attorney’s conduct, the plaintiff would have been successful in the underlying action. Blue Water Corp. v. O’Toole, 336 N.W.2d 279, 281 (Minn.1983) (stating legal-malpractice elements); Wick v. Widdell, 276 Minn. 51, 53-54, 149 N.W.2d 20, 22 (1967) (stating burden of proof for civil actions). Failure to prove any one of these elements defeats the plaintiffs case. Blue Water Corp., 336 N.W.2d at 282. This means that to survive a motion to dismiss, it must be possible for Noske to produce evidence that proves each of these elements.

To prove elements (c) and (d) in his malpractice action, Noske must show that Friedberg’s negligent acts caused him to be convicted and sent to prison and that but for Friedberg’s acts, he would not have been convicted. But from the moment when Noske was convicted until the moment when his conviction was vacated, his conviction was, in the eyes of the law, a legal conviction. Therefore, to prove all of the elements of his legal-malpractice action before his conviction was vacated, Noske would have to show that his legal conviction would not have occurred but for Friedberg’s negligent acts. But allowing Noske to prove that although his conviction is legal, it is, nevertheless, wrongful because it was caused by Friedberg’s negligence simultaneously treats the conviction as both legal and wrongful.

This inconsistency can be avoided, however, by requiring a convicted defendant to obtain relief from a conviction before bringing a cause of action for legal malpractice that is based on a claim that defense counsel’s negligent acts were the proximate cause of the conviction. Unlike an unsuccessful civil litigant, a convicted defendant may seek a new trial on the ground of ineffective assistance of counsel in a direct appeal from the judgment of conviction, in a postconviction proceeding pursuant to Minn.Stat. §§ 590.01-06 (2002), or in a federal habeas corpus proceeding. To obtain a new trial on the ground of ineffective assistance of counsel in either a postconviction proceeding or in a direct appeal, a

defendant must affirmatively prove that his counsel’s representation “fell below an objective standard of reasonableness” and “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.”

Gates v. State, 398 N.W.2d 558, 561 (Minn.1987) (quoting Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 2064, 2068, 80 L.Ed.2d 674 (1984)). This is also the standard that the federal district court applied in granting Noske’s petition for writ of habeas corpus and vacating his 1990 assault conviction. Noske v. Stender, No. 4-93-518, slip op. at 12, 20-21 (D.Minn. Jan. 8, 1999).

If a convicted defendant meets this standard, the conviction will be invalidated, and it will not be necessary to prove in a later legal-malpractice action that a legal conviction would not have occurred but for the negligent acts of counsel. Conversely, if a convicted defendant cannot meet this standard, the conviction will remain in effect. But a convicted defendant who cannot meet the standard of proving that there is a reasonable probability that, but for counsel’s unprofessional errors, there would not have been a conviction, also cannot meet the higher burden of proving by a fair preponderance of the evidence in a later malpractice action that but for counsel’s negligent conduct, there would not have been a conviction. See John W. Strong, et al., McCormick on Evidence § 339, at 422 (5th ed.1999) (most acceptable meaning of proof by a preponderance is proof that leads jury to find that existence of the contested fact is more probable than its nonexistence); see also 4 Minnesota Practice, CIVJIG 14.15 (1999) (greater weight of the evidence “means that all of the evidence, regardless of which party produced it, must lead you to believe that the claim is more likely true than not true”). If it is not reasonably probable that but for counsel’s errors, a conviction would not have occurred, it cannot be more probable than not that, but for counsel’s errors, the conviction would not have occurred.

Because it is inconsistent to simultaneously treat an existent conviction as both legal and wrongful, and because there are existing procedures that permit a convicted defendant to obtain relief from a conviction on the ground of ineffective assistance of counsel, we hold that a cause of action for legal malpractice that is based on a claim that counsel’s acts were the proximate cause of the plaintiffs criminal conviction accrues, and the statute of limitations begins to run, when the plaintiff obtains relief from the conviction.

Our holding is consistent with decisions in other jurisdictions that have considered whether appellate or postconviction relief from a conviction should be a prerequisite to maintaining a legal-malpractice action arising out of a criminal proceeding. See, e.g., Shaw v. State, Dep’t of Admin., 816 P.2d 1358, 1361-62 (Alaska 1991); Glaze v. Larsen, 203 Ariz. 399, 55 P.3d 93, 98 (Ct.App.2002); Steele v. Kehoe, 747 So.2d 931, 933 (Fla.1999); Morgano v. Smith, 110 Nev. 1025, 879 P.2d 735, 737 (1994); Stevens v. Bispham, 316 Or. 221, 851 P.2d 556, 561-62 (1993); Falkner v. Foshaug, 108 Wash.App. 113, 29 P.3d 771, 773 (2001).

In Steele v. Kehoe, 747 So.2d at 933, the Florida Supreme Court succinctly stated several policy arguments that are the bases for these decisions:

(1) without obtaining relief from the conviction or sentence, the criminal defendant’s own actions must be presumed to be the proximate cause of the injury; (2) monetary remedies are inadequate to redress the harm to incarcerated criminal defendants; (3) appellate, postcon-viction, and habeas corpus remedies are available to address ineffective assistance of counsel; (4) requiring appellate or postconviction relief prerequisite to a malpractice claim will preserve judicial economy by avoiding the relitigation of supposedly settled matters; and (5) relief from the conviction or sentence provides a bright line for determining when the statute of limitations runs on the malpractice action.

These policy arguments provide additional support for our holding.

We acknowledge that some courts that have considered this statute-of-limitations issue have reached a conclusion that is different from ours. See, e.g., Settle v. Fluker, 978 F.2d 1063, 1064 (8th Cir.1992) (interpreting Missouri law); Gebhardt v. O’Rourke, 444 Mich. 535, 510 N.W.2d 900, 904-05 (1994); Rodriguez v. Nielsen, 259 Neb. 264, 609 N.W.2d 368, 375 (2000); Duncan v. Campbell, 123 N.M. 181, 936 P.2d 863, 868-69 (App.1997). But for the reasons that we have already stated, we are not persuaded by these decisions.

Citing Gebhardt v. O’Rourke, respondents argue that a two-track procedure for handling a legal-malpractice action that arises out of a criminal proceeding is a better course than requiring relief from the conviction as a prerequisite for a legal-malpractice action because the two-track procedure recognizes the significance of the statute of limitations and addresses “the interplay between malpractice claims against criminal defense attorneys and the client’s pursuit of postconviction relief.”

In Gebhardt, the Michigan Supreme Court stated the policies underlying the statute of limitations:

The statute of limitations affords the opposing party a fair opportunity to defend, relieves the court system from dealing with “stale” claims, and protects potential defendants from protracted fear of litigation.

510 N.W.2d at 905.

The court then explained that the two-track approach that it was adopting,

recognizes that a criminal defendant who has initiated postconviction relief proceedings should have knowledge sufficient to have discovered his claim against his initial defense attorney for statute of limitation purposes. In order to put the defense attorney on notice that he will have to defend against a malpractice claim, and thereby honor the policies underlying the statute of limitations, the criminal defendant must file his malpractice complaint within six months of discovering the existence of the claim, or within two years of his attorney’s last day of service in the matter in which the alleged negligence occurred.
With his claim preserved, he can and should seek a stay in the civil suit until the criminal case is resolved. The trial court handling the civil suit would have discretion regarding whether the stay would continue until judgment in the criminal matter is final or, if after the initial judgment on postconviction relief, justice would permit going forward with the civil suit while the appeal process in the criminal matter continues until final determination.

Id. at 907.

This two-track approach does strike a balance between relevant conflicting policy goals. But in Oanes v. Allstate Ins. Co., 617 N.W.2d 401 (Minn.2000), the Minnesota Supreme Court considered and rejected a similar procedure for addressing a similar policy conflict that arose in an action seeking underinsured motorist (UIM) benefits.

In Oanes, the plaintiffs sought to recover UIM benefits under their policy more than six years after the automobile accident that caused their injuries. Id. at 402. Before Oanes, UIM claims accrued at the time of the accident, but could not be recovered until all claims against the tort-feaser had been exhausted by settlement or judgment. Employers Mut. Cos. v. Nordstrom, 495 N.W.2d 855, 858 (Minn.1993) (holding settlement or judgment against tortfeasor is condition precedent to bringing UIM claim); O’Neill v. Ill. Farmers Inc. Co., 381 N.W.2d 439, 439 (Minn.1986) (holding UIM claims accrued on accident date). Recognizing that there was no guarantee that the Nordstrom condition precedent would occur before the six-year statute of limitations had run, the supreme court adopted a rule designating the date of settlement or judgment against the tort-feasor as the accrual date for UIM claims. Oanes, 617 N.W.2d at 407. The supreme court rejected an alternative approach that would require the insured to commence a UIM action within the six-year statute of limitations and then request that the trial be delayed until the underlying tort action was either settled or litigated to completion. Id. at 405-06. The supreme court concluded that although this solution maintained the viability of both the rule that a UIM claim accrues on the date of the accident and the rule that a settlement or judgment against the tortfeasor is a condition precedent to bringing a UIM claim, it did so at a cost. Id. at 405.

That cost is the invitation to bring litigation, including the attendant burden and expense placed on finite judicial resources as well as on the parties, for cases in which no justiciable controversy currently exists or may ever exist. We decline to extend such an invitation.

Id. at 405-06.

Following the two-track approach adopted in Gebhardt would impose a similar cost because it would require every convicted defendant who seeks relief from a conviction based on an ineffective-assistance-of-counsel claim to also file a legal-malpractice action or risk later having the action be time-barred. We see no basis for concluding that this cost is unacceptable with respect to a UIM claim but acceptable with respect to a legal-malpractice claim.

Noske also argues that he would have been collaterally estopped from bringing a malpractice claim before he obtained relief from his conviction. But Noske did not attempt to bring an action before he obtained relief from his conviction. Therefore, his collateral-estoppel argument is hypothetical, and the district court properly declined to address it. See State v. Fisher, 588 N.W.2d 515, 517 (Minn.App.1999) (courts need not address hypothetical arguments), review denied (Minn. Apr. 20, 1999).

DECISION

Noske’s cause of action for legal malpractice accrued, and the statute of limitations began to run, when Noske obtained relief from his conviction in 1999. Therefore, the cause of action is not barred by the statute of limitations, and the district court erred in dismissing the cause of action.

Reversed and remanded.


source: Caselaw Access Project

author: ROBERT H. SCHUMACHER, Judge.

license: Public Domain

text:
    Leanne WOLLAN, Appellant, v. Jayson M. JAHNZ, Defendant, GRIZZLY’S SPORTS BAR GRILL, INC., et al., Respondents.
    No. C4-02-1127.
    Court of Appeals of Minnesota.
    Feb. 11, 2003.

      Michael J. Riehm, Minneapolis, MN, for appellant.
    Byron M. Peterson, Tomsche, Sonnesyn Tomsche, P.A., Golden Valley, MN, for respondents.
    Considered and decided by HALBROOKS, Presiding Judge, SCHUMACHER, Judge, and HUDSON, Judge.
   OPINION

ROBERT H. SCHUMACHER, Judge.

Appellant LeAnn Wollan brought this action for personal injuries against respondents Grizzly’s Sports Bar & Grill, Inc., Douglas Fore, and Susan Fore for providing alcohol to a minor. The district court granted the motion of Grizzly’s and the Fores to dismiss the case, holding that Wollan failed to include Grizzly’s and the Fores as defendants within a two-year limitations period. We reverse.

FACTS

On December 29, 1997, Grizzly’s hosted its employee Christmas party. The Fores, sole shareholders and operators of Grizzly’s, provided alcoholic beverages to employees at the event. Jayson M. Jahnz, an employee under 21 years of age, consumed alcoholic beverages at- the party and became intoxicated. Later that evening, Jahnz was driving a snowmobile with Wol-lan as a passenger when the snowmobile flipped, and Wollan was injured.

Wollan commenced this action against Jahnz on August 20, 1998, alleging his negligent operation of the snowmobile. On January 13, 2000, Jahnz filed for bankruptcy protection, and Wollan’s initial attorneys withdrew as counsel that same day. This action was then stayed pending the outcome of the bankruptcy.

On August 2, 2001, nearly four years after her injury, Wollan sought to amend the complaint to include Grizzly’s and the Fores as additional defendants for a claim under Minn.Stat. § 340A.801, subd. 6 (2002). The district court initially denied Wollan’s motion to amend the complaint, but it later amended its order to allow the inclusion of the additional defendants.

Grizzly’s and the Fores then moved to dismiss the case, contending the two-year limitations period applied. Wollan argued that the proper limitations period was six years as a common-law negligence action under Minn.Stat. § 541.05, subd. 1(5) (2002). The district court granted the motion to dismiss, reasoning that the claim was similar to an intentional tort action with the two-year limitations period specified by Minn.Stat. § 541.07(1) (2002).

ISSUE

Is an action brought under Minn.Stat. § 340A.801, subd. 6, for providing alcohol to a minor who causes injury to another, subject to a two-year or six-year limitations period?

ANALYSIS

This case contains no factual disputes, but only questions of law that are reviewed de novo. Moreno v. Crookston Times Printing Co., 610 N.W.2d 321, 327 (Minn.2000). When a ease is decided on stipulated facts, the only issue on appeal is whether the district court erred in applying the law. VanWagner v. Mattison, 533 N.W.2d 75, 77 (Minn.App.1995), review denied (Minn. Sept. 20, 1995). A claim brought under the Civil Damages Act, Minn.Stat. § 340A.801 (2002), is a creation of statute in derogation of common law. Whitener ex rel. Miller v. Dahl, 625 N.W.2d 827, 830 (Minn.2001). As a statutorily created cause of action, the statute will be strictly construed. Id. at 833.

If a pleading is amended to introduce a new party, the limitations period is calculated as of the date of the amendment. Johnson v. Davis, 166 Minn. 126, 128, 207 N.W. 23, 24 (1926) (substituting new party is equivalent to bringing new action); Watson v. Stonewings on the Lake, 393 N.W.2d 518, 521 (Minn.App.1986) (holding that action including additional parties did not relate back to original filing if additional parties had no prior knowledge of action against initial defendants).

Here, the district court held that a claim brought under Minn.Stat. § 340A.801, subd. 6 (2002) must be brought within the two-year limitations period provided for in section 541.07(1) (2002). Wollan argues that the proper period is the six-year term for negligent torts under section 545.01, subd. 1 (2002).

The common law did not recognize a cause of action against a vendor for injuries resulting from the sale of intoxicating beverages. K.R. v. Sanford, 605 N.W.2d 387, 391 (Minn.2000). However, the Minnesota legislature first imposed liability on vendors in 1911 by enacting the Civil Damages Act. Id.; see also Minn.Stat. § 340A.801. Since the Act’s promulgation, the Minnesota Supreme Court and the legislature have engaged in a “duet” in which the court notes an omission or oversight in the statute, and the legislature responds by amending it. See Koehnen v. Dufuor, 590 N.W.2d 107, 109-12 (Minn.1999) (outlining evolution of Civil Damages Act).

In 1985, the supreme court held that “a social host is not liable in a common-law action for negligently serving alcohol to a minor.” Holmquist v. Miller, 367 N.W.2d 468, 472 (Minn.1985); accord Meany v. Newell, 367 N.W.2d 472, 474 (Minn.1985). The court stated that only the legislature could create social-host liability. Holmquist, 367 N.W.2d at 471-72. In 1990, the Minnesota legislature enacted the following amendment in apparent response to the Holmquist decision:

Nothing in this chapter precludes common law tort claims against any person 21 years or older who knowingly provides or furnishes alcoholic beverages to a person under the age of 21 years.

Minn.Stat. § 340A.801, subd. 6 (2002); see VanWagner, 533 N.W.2d at 79 (recognizing that Holmquist was superceded by statute).

The statute did not overtly create a statutory cause of action, but merely permitted common-law tort claims. The common law, however, did not recognize tort claims for providing a minor with alcoholic beverages. Koehnen, 590 N.W.2d at 109. Rather, such liability “is a part of our jurisprudence solely as a creation of the legislature.” Id. At 111-12. Despite the lack common-law precedent, subdivison 6 did not specifically provide á limitations period for claims brought under that section.

Wollan argues that the six-year statute of limitations for negligence actions is the appropriate measure for cases brought under subdivison 6. Most negligence causes of action are governed by Minn.Stat. § 541.05, subd. 1(5) (2002), which provides a six-year limitations period for “criminal conversion, or for any other injury to the person or rights of another, not arising out of contract, and not hereinafter enumerated.” (Emphasis added); see D.M.S. v. Barber, 645 N.W.2d 383, 390 (Minn.2002) (stating “most negligence actions” are subject to a six-year period of limitation).

In the past, Minnesota courts have consistently analyzed social host liability using principles of negligence. See, e.g., Trail v. Christian, 298 Minn. 101, 213 N.W.2d 618 (Minn.1973); Wegan v. Village of Lexington, 309 N.W.2d 273 (Minn.1981). Both Trail and Wegan were superceded by legislation passed in 1982. See Act of Mar. 22, 1982, c. 528, § 7, 1982 Minn. Laws 978; Holmquist, 367 N.W.2d at 471 (recognizing Trail’s ineffectiveness after 1982 statute). Neither the 1982 modification of the Civil Damages Act to include malt liquor containing more than 3.2% alcohol by weight (“3.2 beer”) nor the addition of subdivision 6 in 1990 altered the negligence analysis used in Trail or Wegan. The inclusion of 3.2 beer in the Civil Damages Act merely expanded the types of alcohol included under the purview of the statute; it did not alter the cause of action upon which the claim was based. Similarly, by adding subdivision 6, the legislature did not create a new cause of action, but has merely granted permission to apply existing common-law principles to the defined social hosts.

Since the 1990 addition of subdivision 6, this court has continued to apply negligence principles to actions permitted by that subdivision. In VanWagner, this court determined that the common-law action permitted by subdivision 6 should be analyzed using negligence principles and noted that common-law actions permitted by subdivision 6 do not arise directly under Civil Damages Act. VanWagner, 533 N.W.2d at 75. Professor Michael Steen-son has also noted that the legislature, by adding subdivision 6, consciously permitted social-host liability to be decided using common-law negligence principles. Michael K. Steenson, With the Legislature’s Permission and the Supreme Court’s Consent, Common Law Social Host Liability Returns to Minnesota, 21 Wm. Mitchell L.Rev. 45, 106 (1995) (“[T]he legislature acted with full awareness of the division that would be created by permitting social host liability on the basis of common law negligence principles.”). We do not believe that the promulgation of subdivision 6 compels this court to discontinue applying a negligence analysis and its concomitant six-year limitations period.

We disagree with the district court’s determination that subdivision 6 is controlled by the two-year limitations period found in Minn.Stat. § 541.07(1) (2002). By adding subdivision 6, the legislature did not take it upon itself to create a new cause of action or statutory scheme, but it only gave its permission for common-law actions to go forward. The legislature provides no indication that it intended to diverge from the negligence analysis used in the past. Applying the two-year limitations period in Minn.Stat. § 340A.802, subd. 2 (2002), which controls other portions of the Civil Damages Act, is similarly inappropriate. The VanWagner court noted that by enacting subdivision 6, the legislature indicated its intent that the Civil Damages Act not preempt actions under that subdivision. VanWagner, 533 N.W.2d at 77. This distinction between subdivision 6 and the other subdivisions in that section further demonstrates that the two-year limitations period for the rest of the Civil Damages Act does not apply to common-law actions under subdivision 6.

This court most recently analyzed the limitations period under the Civil Damages Act in Brua v. Olson, 621 N.W.2d 472 (Minn.App.2001), review denied (Minn. Mar. 27, 2001). Of particular interest is the following statement:

Because the legislature could have but did not make the statute of limitations applicable to “any action brought under this act,” we read the two-year limitation [in Minn.Stat. § 340A.802, subd. 2] as only applying to direct actions against the liquor vendor brought under section 340A.801.

Id. at 475. Though Brua was brought under Minn.Stat. § 340A.801, subd. 1, the case similarly involved a snowmobile driver who became intoxicated and subsequently injured a third party. Id. at 473. In light of the Bma court’s ruling that the two-year limitations period in section 340A.802, subd. 2, narrowly applies to direct actions against vendors of alcohol, we will not expand its application to include actions against social hosts under subdivision 6.

Because we find no compelling reason to diverge from the negligence analysis used in prior cases under the Civil Damages Act and subdivision 6, we hold that the six-year limitations period under Minn.Stat. § 541.05, subd. 1(5) is the proper measure for those common-law actions permitted by section 340A.801, subdivision 6.

DECISION

Actions brought under Minn.Stat. § 340A.801, subd. 6 (2002), are governed by the six-year limitations period provided in Minn.Stat. § 545.01, subd. 1(5) (2002).

Reversed.


author: TOUSSAINT, Chief Judge.

text:
    STATE of Minnesota, Respondent, v. Cheryl Ann SMITH, et al., Appellants.
    No. C6-02-1808.
    Court of Appeals of Minnesota.
    Feb. 11, 2003.

      Gregory R. Anderson, Anderson, Larson, Hanson & Saunders, Willmar, MN, for appellants.
    Mike Hatch, Attorney General, St. Paul, MN; and Gayle A. Borchert, Assistant Meeker County Attorney, Litchfield, MN, for respondent.
    Considered and decided by TOUSSAINT, Chief Judge, LANSING, Judge, and MINGE, Judge.
   SPECIAL TERM OPINION

TOUSSAINT, Chief Judge.

Appellants filed a petition for discretionary “appeal” of a pretrial order denying their motion to dismiss the complaint charging them with deprivation of parental rights. This court questioned jurisdiction because it appeared that no judgment of-conviction had been entered, but we gave appellants an opportunity to show why discretionary review should be granted. Because we conclude that appellants have not shown a compelling reason to grant discretionary review, we deny that request and dismiss the appeal.

FACTS

Appellants Cheryl Ann and Dean Smith have been charged in a criminal complaint with depriving Cheryl Smith’s ex-husband, Eldon Raasch, of his parental rights. See Minn.Stat. § 609.26, subd. 1(1) (2000). As the district court found in its order denying appellants’ motion to dismiss, appellants are married and are the biological parents of T.D.S.R., who is eight years old.

In 1997, appellants entered into a stipulation with Raasch, who was married to Cheryl Smith at the time of T.D.S.R.’s birth. The stipulation acknowledged Dean Smith as T.D.S.R.’s biological father but awarded Raasch visitation (now termed “parenting time” in the statute) with T.D.S.R. Raasch also has joint legal and physical custody of J.A.R., a child of his marriage to Cheryl Smith.

In May 2002, Raasch reported to police that Cheryl Smith had apparently left the area, taking T.D.S.R. and J.A.R. without notifying school officials. Appellants remained missing, along with the children, until they surrendered to police on June 28, 2002.

Appellants filed a motion in the district court to dismiss the resulting complaint on the grounds that Raasch had only a “contractual right” to visit T.D.S.R., not a “parental right” a violation of which would support a criminal charge under Minn. Stat. § 609.26, subd. 1(1). The district court denied the motion, concluding that Raasch’s enforceable right to spend time with T.D.S.R. fell within the definition of “parenting time” in Minn.Stat. § 518.003, subd. 5, and therefore was a “parental right” under Minn.Stat. § 609.26, subd. 1(1). The court relied in part on this court’s unpublished opinion in the related civil action, which held that Raasch had an enforceable right to visitation (parenting time), not merely a contractual right. Smith v. Raasch, No. C9-01-951, 2002 WL 109481 (Minn.App. Jan.29, 2002), review denied (Minn. Mar. 19, 2002).

Appellants filed a notice of appeal from the district court order, along with a statement of the case citing Minn. R.Crim. P. 28.02, subd. 3 and Minn. R. Civ.App. P. 103.03(j) as the jurisdictional bases for the appeal. This court questioned jurisdiction because it appeared that the district court order was a pretrial order that was not appealable as of right. The order asked the parties to address whether the appeal should be construed as a petition for discretionary review and whether there was a compelling reason to grant discretionary review. The parties filed jurisdictional memoranda with the court.

ISSUES

I. Should the notice of appeal be construed as a petition for discretionary review?

ii. Have appellants shown a compelling reason to grant discretionary review?

ANALYSIS

I.

Criminal defendants, except in two situations not present here, may not appeal from an order issued before the final judgment of conviction has been entered against them. Minn. R.Crim. P. 28.02, subd. 2(2). Appellants concede that the district court order denying their motion to dismiss is a nonappealable pretrial order.

The rules of criminal procedure permit this court to allow a “discretionary appeal” from an otherwise nonappealable order upon a petition of the defendant. Minn. R.Crim. P. 28.02, subd. 3. Appellants cited this rule as the jurisdictional basis for this appeal, although they filed a “notice of appeal” rather than filing, as the rule seemingly allows and as many defendants have filed, a “petition” for appeal. Appellants also filed a statement of the case, a document required in appeals filed as of right. They did not file any statement of the facts or issues involved in the appeal, nor did they explain why this court should grant discretionary review. See Minn. R. Civ.App. P. 105.02 (outlining required contents of a petition for discretionary review).

A discretionary “appeal” filed in the guise of an appeal as of right, with a notice of appeal and statement of the case, does not alert the opposing party of its opportunity to respond to the request for discretionary review. See id. (providing that response to petition for discretionary review may be filed within five days after service of petition). It also will fail to survive this court’s jurisdictional screening because a jurisdictional basis for the appeal must be shown in the statement of the case. See Minn. R. Civ.App. P. 133.03, Form 133. Thus, a criminal defendant obtains no benefit from filing a discretionary “appeal” as if it were an appeal as of right. The proper procedure for seeking discretionary review in a criminal case is provided in Rule 105 of the Rules of Civil Appellate Procedure, even though that rule is not referenced in Minn. R.Crim. P. 28.02, subd. 3. Any attempt to proceed otherwise only causes additional work for both the defendant and the court.

This court in the order questioning jurisdiction has solicited from appellants a statement of any compelling reasons that might support discretionary review. Thus, we have in effect construed appellants’ notice of appeal as a petition for discretionary review. See State v. Pflepsen, 590 N.W.2d 759, 764 (Minn.1999) (holding that court of appeals had authority to treat notice of appeal as petition for writ of prohibition). But our authority to do so is discretionary, and this court in future cases is not required to accept notices of appeal or petitions for discretionary “appeal” that show neither a jurisdictional basis for an appeal as of right nor a compelling reason for discretionary review.

II.

Appellants in their jurisdictional memorandum contend that there is a compelling reason for this court to grant discretionary review of the district court’s construction of the statute under which they are charged. See generally State v. Jordan, 426 N.W.2d 495, 496 (Minn.App.1988) (denying discretionary review because no “compelling reason” was shown).

Appellants seek to challenge the district court’s determination that the visitation with T.D.S.R. to which the victim, Eldon Raasch, was entitled by virtue of a 1997 stipulation between the parties, was “parenting time” for purposes of the criminal statute prohibiting deprivation of parental rights. See Minn.Stat. § 609.26, subd. 1(1) (prohibiting concealing a child from a person having “the right to parenting time”). But this court has already reviewed the status of Raasch’s “visitation rights,” as they were called in the stipulation, in an appeal in the civil proceeding in which the Smiths challenged those rights. Smith v. Raasch, No. C9-01-951, 2002 WL 109481 (Minn.App.2002), review denied (Minn. Mar. 19, 2002). This court rejected the Smiths’ argument that Raasch’s rights were fundamentally different than the rights of a parent, or that they were barred by public policy. Id.

The issue involved in this criminal prosecution, tied as it is to the language of the criminal statute, is somewhat different. But it involves the application of a statute to the unique facts of this particular case. Appellants do not suggest that this is an issue of statewide importance or that a decision in this case would have wide application. Rather, they seek review because the statutory construction issue is, in their view, dispositive and a decision on it could make a trial unnecessary.

Appellants concede that the statutory construction issue is determinative of the prosecution, but they have not proceeded under State v. Lothenbach, 296 N.W.2d 854, 857 (Minn.1980) to expedite appellate review. This court held that in prosecutions for possession offenses (where a fourth amendment suppression ruling may be virtually dispositive of the case), a defendant seeking discretionary review must show why he should not be required to proceed under Lothenbach by stipulating to the facts and waiving a jury trial. State v. Pendleton, 427 N.W.2d 272, 273 (Minn.App.1988). Appellants are not charged with a possession offense, but they do concede that the pretrial issue on which they seek discretionary review is dispositive of the case. Therefore, they would have no interest in proceeding to an expensive and time-consuming jury trial merely to present a defense on facts that they admit conclusively prove the crime, if the statute is construed as the state argues it should be.

Although the holding in Pendleton is by its terms limited to prosecutions for possession crimes, its logic extends to prosecutions for other crimes in which the defendants seeking discretionary review concede that the pretrial legal issue is dispositive. Appellants’ interest in avoiding the time and expense of a jury trial, which they can avoid by a Lothenbach stipulation, does not by itself establish a compelling reason to extend pretrial discretionary review. Because appellants have shown no other compelling reason, we decline to grant discretionary review in this case.

DECISION

Appellants improperly filed a notice of appeal form a nonappealable pretrial order to obtain a discretionary “appeal.” This court may construe the notice of appeal as a petition for discretionary review, but appellants’ jurisdictional memorandum does not establish a compelling reason to grant discretionary review.

Appeal dismissed.

      . The rule refers to a discretionary "appeal.” Minn. R.Crim. P. 28.02, subd. 3; see also State v. Verschelde, 595 N.W.2d 192, 196 (Minn.1999) (holding this court has jurisdiction to hear discretionary “appeal”). Although this term may create some confusion, it is the form and content of the documents actually filed that determine what type of review is being sought.


author: HUDSON, Judge.

text:
    STATE of Minnesota, Respondent, v. Philip Leighton SOUKUP, Appellant.
    No. C8-02-885.
    Court of Appeals of Minnesota.
    Feb. 11, 2003.

      Mike Hatch, Attorney General, St. Paul, Mn; and Terry L. Adkins, Rochester City Attorney, SaraJane M. Olson, Assistant City Attorney, Rochester, Mn, for respondent.
    John M. Stuart, State Public Defender, Roy G. Spurbeck, Assistant Public Defender, Minneapolis, Mn, for appellant.
    Considered and decided by HALBROOKS, Presiding Judge, SCHUMACHER, Judge, and HUDSON, Judge.
   OPINION

HUDSON, Judge.

Appellant Philip Leighton Soukup challenges his misdemeanor conviction of disorderly conduct, arguing that the trial court erred by ruling that, as a matter of law, self-defense does not apply where the defendant is charged with the offense of disorderly conduct. We hold that a defendant may raise a claim of self-defense to a charge of disorderly conduct where the behavior forming the basis of the offense presents the threat of bodily harm. But because the evidence in the record, as a matter of law, does not support a claim of self-defense, the trial court’s erroneous legal ruling is harmless error. We affirm.

FACTS

On December 17, 2001, John Soukup (Soukup) and his brother Philip Leighton Soukup (appellant) were working at a construction site in Rochester. Soukup and a co-worker, Anthony Richards (Richards), were cleaning in a construction site building when appellant entered the building. Soukup hollered at appellant, “What the hell are you doing in here” and told him to leave. Richards heard the two brothers exchanging words and then saw Soukup grab the back of appellant’s coat. Appellant turned to face Soukup, swinging his fist, and the two men simultaneously punched each other in the face. Richards watched them fight for about a minute before leaving to find their foreman. Richards testified that appellant and Souk-up were mutually fighting, and it appeared difficult for appellant to give up the fight. As Richards returned with the foreman, they saw appellant throw the last punch. Appellant emerged from the fight unscathed, but Soukup sustained a large bruise over his left eye and a small cut to his hand. The state charged both men with disorderly conduct.

Appellant waived a jury trial and filed notice of his intention to assert the defense of self-defense prior to trial. Appellant did not testify, nor did he present any witnesses on his behalf. Soukup did not testify either. Defense counsel argued the theory of self-defense in his opening statement, and again in an oral motion for judgment of acquittal. The trial court denied appellant’s motion for acquittal, and ordered the parties to brief the issue of whether self-defense applied to disorderly conduct.

In an order dated May 17, 2002, the trial court found appellant guilty of disorderly conduct. Specifically, the trial court found that appellant “acted in a disorderly manner by fighting and brawling * * ⅜ ” and that “[t]he legal excuse of self-defense does not apply to disorderly conduct.”

This appeal followed.

ISSUE

May a defendant properly assert self-defense against a charge of disorderly conduct?

ANALYSIS

Statutory construction presents a question of law, which we review de novo. State v. Murphy, 545 N.W.2d 909, 914 (Minn.1996). Our primary goal in statutory construction is to effectuate legislative intent. Minn.Stat. § 645.16 (2000). This court must give effect to the plain meaning of clear and unambiguous statutory language, State v. Wetsch, 511 N.W.2d 490, 491 (Minn.App.1994), review denied (Minn. Apr. 19, 1994). When determining legislative intent, we presume that the legislature did not intend an absurd result. Murphy, 545 N.W.2d at 916. “Moreover, courts should give a reasonable and sensible construction to criminal statutes.” Id.

Similarly, this court reviews de novo whether the trial court properly applied the law. State v. Basting, 572 N.W.2d 281, 282 (Minn.1997). Determination of “the evidence required to convict” under a specific statute “is an issue of statutory interpretation, a matter of law” subject to de novo review. State v. Tomlin, 622 N.W.2d 546, 548 (Minn.2001) (citation omitted). Findings from a court trial are entitled to the same weight as a jury verdict. State v. Thompson, 544 N.W.2d 8, 11 (Minn.1996). We will not disturb those findings unless “manifestly against the evidence.” State v. Miller, 253 Minn. 112, 116, 91 N.W.2d 138, 141 (1958).

To fill an existing gap in the law of self-defense, we must decide, as a matter of first impression, whether a defendant charged with disorderly conduct may defend on the basis of self-defense. Appellant maintains that self-defense is a valid defense to a charge of disorderly conduct because Soukup committed “an offense against [appellant’s] person” — -namely, fifth-degree assault — when he grabbed appellant by the back of his coat. Conversely, the state maintains that this court expressly held in State v. Glowacki, 615 N.W.2d 843 (Minn.App.2000) (Glowacki I), rev’d, 630 N.W.2d 392 (Minn.2001) (Glowacki II), that the legal excuse of self-defense does not apply to the offense of disorderly conduct.

1. Disorderly Conduct

Minnesota law defines disorderly conduct as follows: '

Whoever does any of the following in a public or private place, including on a school bus, knowing, or having reasonable grounds to know that it will, or will tend to, alarm, anger or disturb others or provoke an assault or breach of the peace, is guilty of disorderly conduct, which is a misdemeanor:
(1) Engages in brawling or fighting; or
(2) Disturbs an assembly or meeting, not unlawful in its character; or
(3) Engages in offensive, obscene, abusive, boisterous, or noisy conduct or in offensive, obscene, or abusive language tending reasonably to arouse alarm, anger, or resentment in others.

Minn.Stat. § 609.72 (2000). The trial court found that appellant violated parenthetical (1), relating to brawling and fighting. To prove disorderly conduct, the state must show that an offender “knew or should have known that his conduct would alarm, anger or disturb others or would provoke an assault or breach of the peace.” State v. Ackerman, 380 N.W.2d 922, 925 (Minn.App.1986). Actual commotion need not occur, rather “[i]t is sufficient if defendant’s conduct is likely to annoy, disturb, or arouse anger.” City of St. Paul v. Azzone, 287 Minn. 136, 139-40, 177 N.W.2d 559, 561-62 (1970).

2. Self-defense

Minnesota law authorizes the reasonable use of force under certain circumstances, and provides, in relevant part:

[e]xcept as otherwise provided in subdivision 2, reasonable force may be used upon or toward the person of another without the other’s consent when the following circumstances exist or the actor reasonably believes them to exist:
(3) when used by any person in resisting or aiding another to resist an offense against the person.

Minn.Stat. § 609.06, subd. 1(3) (2000). This statute allows an individual to use reasonable force to resist “an offense against the person,” but the law is not offense-specific and imposes no limits on application of the defense based on the type of offense charged. Id. Notably, principles of self-defense in homicide cases apply to assault cases as well. See State v. Baker, 280 Minn. 518, 523, 160 N.W.2d 240, 243 (1968). Accordingly, the four elements of self-defense are: (1) an absence of aggression or provocation; (2) an actual and honest belief that imminent death or great bodily harm would result; (3) a reasonable basis existed for this belief; and (4)an absence of reasonable means to retreat or otherwise avoid the physical conflict. Basting, 572 N.W.2d at 285. Moreover, a defendant may use reasonable force only in the absence of a reasonable alternative. Glowacki II, 630 N.W.2d at 403. If a defendant has not attempted to evade or retreat from combat, but instead has needlessly joined into it, that use of force is not self-defense. Baker, 280 Minn. at 524, 160 N.W.2d at 243. Respecting the presumption of innocence, any doubt regarding the legitimacy of a self-defense claim should be resolved in a defendant’s favor. State v. Boitnott, 443 N.W.2d 527, 533 n. 2 (Minn.1989).

Though not an exhaustive list, a number of factors are relevant to the determination of whether the level of force used was reasonable: age and size of victim and defendant; victim’s reputation for violence; previous threats and/or altercations between victim and defendant; defendant’s aggression, if any; victim’s provocation, if any. See Basting, 572 N.W.2d at 285-86 (Minn.1997) (considering evidence of victim’s and defendant’s respective physical attributes, defendant’s training as professional boxer, and that only victim sustained injuries in fight); State v. Bland, 337 N.W.2d 378, 382 (Minn.1983) (allowing evidence of victim’s reputation for violence and quarrelsome tendency to determine whether defendant was put in fear of imminent bodily harm or which party was aggressor); Baker, 280 Minn. at 526, 160 N.W.2d at 245 (stating defendant’s lack of injuries probative); State v. Roy, 408 N.W.2d 168, 172 (Minn.App.1987) (considering victim and defendant of comparable size, victim sustained multiple, ultimately fatal, injuries but defendant sustained none), review denied (Minn. July 22, 1987).

Furthermore, and of particular significance here, a defendant claiming self-defense carries the burden of going forward with evidence to support his or her claim. State v. Graham, 371 N.W.2d 204, 209 (Minn.1985). The burden is one of- production, and “requires the defendant to come forward and present a sufficient threshold of evidence to make the defense one of the issues of the case.” State v. Charlton, 338 N.W.2d 26, 29 (Minn.1983). The defense is sufficiently raised when a defendant creates a reasonable doubt as to whether the level of force used was justified. State v. Stephani, 369 N.W.2d 540, 546 (Minn.App.1985), review denied (Minn. Aug. 20, 1985). Once a defendant has met this burden, the state must demonstrate that the defendant did ■ not act in self-defense by negating one of the four elements of the defense. State v. Spaulding, 296 N.W.2d 870, 875 (Minn.1980).

As a threshold matter, we recognize that one can commit disorderly conduct as defined in parentheticals (2) and (3) of Minn.Stat. § 609.72 (the disorderly conduct statute) without committing an “offense against the person.” See City of Little Falls v. Witucki, 295 N.W.2d 243 (Minn.1980) (uttering abusive, vulgar and offensive language, i.e., “fighting words” at bartender). Inasmuch, self-defense does not apply to all behaviors that may constitute violations of the disorderly conduct statute, like public urinating, excessive noise, etc. Thus, in order to fall within the ambit of parenthetical (3) of Minn.Stat. § 609.06 (the self-defense statute), the offense to which a person asserts self-defense must be considered an offense of a physical nature, carrying the potential to cause bodily harm, that is, an “offense against the person.” Accordingly, we hold that self-defense is applicable to a charge of disorderly conduct where the behavior forming the basis of the offense presents the threat of bodily harm.

Here, Soukup undeniably started the fight by grabbing the back of appellant’s coat, and plainly committed an offense against appellant’s person — namely, assault. For this fact alone, appellant was entitled to raise the defense of self-defense. Other factors suggest this is the right result. For instance, the phrase “brawling and fighting” obviously suggests an offense against one’s person. Moreover, disorderly conduct is frequently charged in tandem with more violent offenses, such as varying degrees of assault and terroristic threats. See Glowacki II, 630 N.W.2d at 392 (committing domestic assault, fifth-degree assault, and disorderly conduct by hitting, kicking, and pushing former girlfriend); State v. Johnson, 392 N.W.2d 357 (Minn.App.1986) (committing fifth-degree assault and disorderly conduct by swearing and screaming at, and eventually striking, victim). Additionally, CRIM-JIG 13.120, the disorderly conduct jury instruction, is found in chapter 13, titled “Assault and Related Crimes Against the Person,” also home to instructions for offenses such as assault and terroristic threats. See 10 Minnesota Practice, CRIMJIG 13.01-.127 (1999). Finally, as appellant correctly notes, some states specifically allow an individual charged with disorderly conduct to assert self-defense. See, e.g., State v. Schumaier, 603 N.W.2d 882 (N.D.1999); D.M.L. v. State, 773 So.2d 1216 (Fla.Dist.Ct.App.2000); State v. Heiskell, 8 Kan.App.2d 667, 666 P.2d 207 (1983).

To the contrary, the state claims that our decision in Glowacki I precludes a defendant from raising self-defense against disorderly conduct. In Glowacki I, we held that instructing the jury that “the legal excuse of self-defense * * * includes the duty to avoid the danger if reasonably possible” constituted reversible error because it suggested to the jury that defendant had a duty to retreat in his own home when defending an offense against his person by a co-resident. Glowacki I, 615 N.W.2d at 845. We concluded the opinion by stating “[t]he conviction of disorderly conduct, to which the legal excuse of self-defense does not apply, is unaffected by this decision.” Id. The state points to this sentence in support of its contention that the legal excuse of self-defense does not apply to disorderly conduct. The state also cites a Florida case, D.M.L. v. State, which cited Glowacki I for the above-stated proposition. See D.M.L., 773 So.2d at 1217 (stating in parenthetical Glowacki I held self-defense inapplicable to disorderly conduct). We reject this contention. The D.M.L. court cited Glowacki I in a string cite, prefaced with the signal “[cjontra,” for a proposition contrary to the main holding in that case. D.M.L., 773 So.2d at 1217 (reversing delinquency adjudication for disorderly conduct where trial court refused to consider juvenile’s uncontro-verted testimony indicating she acted in self-defense). The fact that a foreign court cited a Minnesota case for a particular proposition is largely irrelevant and has little bearing here on whether Glo-wacki I squarely decided the question of applying self-defense to disorderly conduct.

More importantly, the state’s assertion that Glowacki I exempts disorderly conduct from self-defense is taken out of context. Glowacki I simply held that the erroneous jury instruction misstated the law of self-defense and warranted reversal of Glowacki’s domestic and fifth-degree assault convictions, but not his disorderly conduct conviction. Furthermore, as appellant correctly states, the sentence upon which the state relies in Glowacki I is mere dicta, and explains the procedural posture of the remaining disorderly conduct conviction, not the holding. “Obiter dictum” refers to a statement that reaches beyond the actual dispute before the court. Pecinovsky v. AMCO Ins. Co., 613 N.W.2d 804, 808 (Minn.App.2000), review denied (Minn. Sept. 26, 2000). Thus, such expressions are not part of the court’s opinion, but rather the individual views of the authoring judge. Id. Dictum is a statement concerning an issue without the “benefit of adversarial briefing and argument.” Id. More importantly, dictum is not the product of thorough research, careful consideration, and deliberate decision-making. State ex rel. Foster v. Naftalin, 246 Minn. 181, 208, 74 N.W.2d 249, 266 (1956). As such, dictum is not entitled to the same reverence as the court’s actual holding. Id. at 209, 74 N.W.2d at 266.

That the state’s reliance on Glowacki I is misplaced is further illustrated by the fact that Glowacki, in his brief to this court, did not argue, or otherwise take a position on, the propriety of asserting self-defense to a charge of disorderly conduct. Thus, in Glowacki I, the issue was not properly before us for consideration, nor did we have the benefit of adversarial argument and briefing. Moreover, the supreme court in Glowacki II did not address, or even mention, the applicability of self-defense to the offense of disorderly conduct. The court thoroughly discussed the defense of self-defense, but only as it applied to the convictions at issue, namely, domestic and fifth-degree assault. Glowacki II, 630 N.W.2d at 399-403. Finally, on remand to this court, we did not address the applicability of self-defense to disorderly conduct. State v. Glowacki, No. C8-99-1507, 2001 WL 1182376 (Minn. App. Oct. 9, 2001) (Glowacki III). The applicability of self-defense to disorderly conduct was neither challenged nor considered in the Glowacki trilogy. Because the applicability of self-defense to disorderly conduct was not squarely before either Minnesota appellate court in the Glowacki trilogy, the statement was, at most, a recitation of the procedural posture with no precedential value. See Pecinovsky, 613 N.W.2d at 808.

Here, the trial court held that self-defense is inapplicable to disorderly conduct. For the reasons explained in this opinion, this ruling was in error. But we conclude that the error was harmless beyond a reasonable doubt. Several factors support our conclusion. First, the evidence in this record is overwhelming that appellant mutually fought with his brother, i.e., engaged in disorderly conduct. See, e.g., State v. Juarez, 572 N.W.2d 286, 291 (Minn.1997) (stating overwhelming evidence of guilt critical factor in determining impact of error on verdict). That the state charged Soukup with disorderly conduct for his role in the altercation further highlights this point. Next, the trial court did not base its finding of guilt on its declaration that self-defense does not apply to disorderly conduct, so much as the uncon-troverted evidence that appellant fought and brawled with his brother. See id. (establishing correct standard of harmless error impact analysis as basis of fact-finder’s verdict, not whether fact-finder could have convicted without error). Finally, the record as a whole establishes that, even if it had considered self-defense, the trial court very likely would have reached the same result. See id. (stating reviewing court examines entire record when determining whether error harmless beyond reasonable doubt).

What remains is whether self-defense was available to appellant in this case; specifically, whether he met his burden of production. We conclude he did not. Of course, whether a defendant’s use of force was reasonable is a fact question and, like all factual disputes, should be decided by the fact-finder. But when the evidence in the record is undisputed and leads a rational fact-finder to a single conclusion, the issue becomes a question of law. Jack Frost, Inc. v. Engineered Bldg. Components Co., 304 N.W.2d 346, 350 (Minn.1981); Costilla v. State, 571 N.W.2d 587, 592 (Minn.App.1997) (“[fjacts may be undisputed even though the parties disagree on the inferences or legal conclusions drawn from the facts”), review denied (Minn. Jan. 28, 1998). Here, a reasonable fact-finder could reach only one conclusion, that appellant’s use of force was unjustified and unreasonable. Glowacki II, 630 N.W.2d at 403 (holding as matter of law no reasonable juror could find defendant’s use of force reasonable even assuming defendant’s version of events was true).

The uncontroverted testimony establishes that, as a matter of law, appellant destroyed whatever self-defense claim he might have had by reacting to Soukup’s assault with a greater-than-warranted level of force. Undoubtedly, appellant was responding to an independent assault by Soukup. But appellant punched Soukup in the face for hollering at him and grabbing his coat and appellant continued to fight with Soukup for at least a minute before a coworker went to alert their supervisor. The record does not indicate any effort by appellant to avoid or retreat from combat, but rather his acceptance of the invitation to fight. Moreover, appellant did not testify, nor did he present other witnesses on his behalf. Though a defendant may still raise self-defense without testifying, the lack of testimony makes it difficult for a defendant to meet the burden of production necessary to go forward with a claim of self-defense. Stephani, 369 N.W.2d at 546 (citing Hauwiller v. State, 295 N.W.2d 641, 643 (Minn.1980)). The record before us is devoid of evidence suggesting appellant’s state of mind during the altercation — his testimony may have shed light on why he responded with that level of force. Nor does the record reflect that appellant made any effort to retreat or otherwise avoid the conflict. There simply is no evidence suggesting that appellant’s use of force was reasonable or justified under the circumstances.

DECISION

The trial court erred in ruling that the legal excuse of self-defense does not apply to the offense of disorderly conduct. But because the record contains ample evidence to rebut a claim of self-defense, that error was harmless. As such, appellant’s disorderly conduct conviction stands.

Affirmed.

      . Originally, the state charged appellant with misdemeanor fifth-degree domestic assault in addition to disorderly conduct, but the state dropped the assault charge on the day of trial.


text:
    Joan F. SMITH, Respondent, v. STATE FARM FIRE AND CASUALTY COMPANY, Appellant.
    No. C8-02-997.
    Court of Appeals of Minnesota.
    Feb. 11, 2003.

      Thomas W. Larkin, Melchert Hubert Sjodin, PLLP, Waconia, MN, for respondent.
    C. Todd Koebele, Michelle D. Christensen, Murnane, Conlin, White Brandt, St. Paul, MN, for appellant.
    Considered and decided by HALBROOKS, Presiding Judge, SCHUMACHER, Judge, and HUDSON, Judge.
   OPINION

ROBERT H. SCHUMACHER, Judge.

Appellant State Farm Fire and Casualty Company challenges the district court’s grant of summary judgment to respondent Joan F. Smith, arguing a business-purposes exclusion in Smith’s homeowner’s insurance policy precludes coverage for damage to a structure on her property. We reverse and remand.

FACTS

In June, 1997, Smith purchased residential property in Carver County, Minnesota, that included a home, two pole barns, and various other outbuildings. Smith purchased a homeowner’s policy from State Farm. The policy provided coverage for “the dwelling” (the home) and “structures on the residence premises, separated from the dwelling by clear space,” but excluded from coverage any non-dwelling structure “used in whole or in part for business purposes” or “rented or held for rental to a person not a tenant of the dwelling, unless used solely as a private garage.” The policy was in effect at all times relevant to this dispute.

When Smith purchased the property, she continued the previous owner’s practice of renting one pole barn to a neighbor for car storage. When the neighbor removed the cars in late 1997, a commercial marina rented both barns to store customer boats for the winter. Smith entered into a lease agreement that required the marina to separately insure the boats and its employees and release Smith from liability for any property damage or personal injury associated with the rental.

As part of her 1997 federal tax return, Smith filed a Schedule C-EZ (“Net Profit From Business”) listing “property rental” as her “principal business or profession” and reporting $1,550 “gross receipts from [her] trade or business” and $250 “deductible business expenses.”

For the following three years, Smith rented the barns to commercial marinas for approximately $4,000 each winter. None of the marinas ever received keys to the barns, which remained locked throughout the winter. There is no evidence in the record that Smith notified State Farm, or that State Farm was otherwise aware, that she was renting space in the pole barns.

In February 2001, one pole barn collapsed, apparently due to snow and ice accumulation on its roof. Neither party has alleged that the roof collapse was in any way related to the presence of the boats inside the barn. Smith submitted a claim to State Farm for the loss of the barn. State Farm denied the claim on the grounds that the policy’s business and rental exclusions precluded coverage because Smith was renting the barn for business purposes.

Smith brought suit seeking a declaratory judgment that State Farm was obligated to provide coverage. State Farm moved for summary judgment, arguing coverage was precluded under the policy because Smith was using the barn for business purposes and because Smith was renting the barn for use other than as a private garage.

The district court determined that Smith’s rental conduct was governed by the policy’s rental exclusion, rather than its general business exclusion, “regardless of whether or not [Smith’s] actions could be construed as a ‘business.’ ” Applying the rental exclusion, the court concluded that because the marina was functional!y using the barn as a private garage in which to store vehicles, Smith was entitled to coverage under the rental exclusion’s private garage exception. The court granted summary judgment against State Farm.

ISSUE

Did the district court err by concluding that the rented pole barn was covered under the private garage exception to the rental exclusion in Smith’s homeowner’s policy?

ANALYSIS

We review a grant of summary judgment to determine “whether there are any genuine issues of material fact and whether the district court erred in its application of the law.” Goins v. W. Group, 635 N.W.2d 717, 722 (Minn.2001). Where, as here, there are no relevant facts in dispute, we review de novo the district court’s interpretation of the insurance contract and the contract’s application to the particular facts of the case. Nat’l City Bank v. St. Paul Fire & Marine Ins. Co., 447 N.W.2d 171, 175 (Minn.1989).

“General principles of contract interpretation apply to insurance policies.” Lobeck v. State Farm Mut. Auto. Ins. Co., 582 N.W.2d 246, 249 (Minn.1998). Unambiguous language must be given its plain and ordinary meaning and any ambiguity in a policy must be construed in favor of the insured. Henning Nelson Const. Co. v. Fireman’s Fund Am. Life Ins. Co., 383 N.W.2d 645, 652 (Minn.1986). Policy provisions must be interpreted according to what the insured would have reasonably understood them to mean. Erickson v. Christie, 622 N.W.2d 138, 140 (Minn.App.2001). Provisions must be “given a meaning in accordance with the obvious purpose of the * * * contract as a whole.” Repub lic Nat. Life Ins. Co. v. Lorraine Realty Corp., 279 N.W.2d 349, 354 (Minn.1979) (quotation omitted).

In an action to determine coverage under an insurance policy containing an exclusion clause, the insurer bears the burden of proving the exclusion bars coverage. SCSC Corp. v. Allied Mut. Ins. Co., 536 N.W.2d 305, 313 (Minn.1995).

[Ojnce the insurer shows the application of an exclusion clause, the burden of proof shifts back to the insured because the exception to the exclusion “restores” coverage for which the insured bears the burden of proof.

Id. at 314.

State Farm argues the district court erred by concluding that because the policy’s rental exclusion specifically controlled Smith’s rental actions, the applicability of the “more general” business exclusion need not be considered “regardless of whether [Smith’s] actions could be construed as a ‘business.’ ”

It is true that the policy’s rental and business exclusions are disjunctive, but it is also true that “[a] contract must be interpreted in a way that gives all of its provisions meaning.” Current Tech. Concepts, Inc. v. Irie Enters., Inc., 530 N.W.2d 539, 543 (Minn.1995) (citation omitted); see also Country Club Oil Co. v. Lee, 239 Minn. 148, 151-2, 58 N.W.2d 247, 249 (1953) (stating that “[a]s far as is reasonably possible [a contract] is to be construed so as to harmonize all of its parts”). Here, the district court declined to consider whether its interpretation and exclusive application of the rental exclusion gave sufficient meaning to either the business exclusion or the homeowner’s policy as a whole.

The policy excludes coverage of structures used for “business purposes,” and defines “business” as “a trade, profession or occupation.” The supreme court has defined business purposes in an insurance policy as “a type of activity in which persons regularly engage for the purpose of earning a livelihood or for gain.” Allied Mut. Cas. Co. v. Askerud, 254 Minn. 156, 163, 94 N.W.2d 534, 539-40 (1959); see also Reins. Ass’n of Minn. v. Patch, 383 N.W.2d 708, 712 (Minn.App.1986) (defining business pursuits as activity “intended to generate profits or financial gain”).

Here, Smith earned approximately $4,000 in each of the three consecutive winters she rented the barns, entered the money received as rental income on her check register, and at least once claimed the income and expenses associated with the rental property as business-related on her federal income tax forms. Cf id. (holding that insured’s activity was not a business where insured had no standard charge for service provided, kept no record of charges, and was unaware whether activity generated income).

Smith argues that because she is a financial analyst, property rental is not her “trade, occupation, or profession,” and the business exclusion cannot apply to her seasonal rental of the barns. We disagree. First, the policy excludes coverage for “business purposes,” not the singular “business purpose,” suggesting that for the purposes of the exclusion, the business in question is not limited to the insured’s primary occupation. Second, that the conduct was part-time or unrelated to the insured’s main occupation does not preclude a determination that the conduct was a business when the insured regularly engaged in the conduct with an intent to profit. See Askerud, 254 Minn. at 163, 94 N.W.2d at 539-40.

We conclude, based on the record before us, that Smith was renting the barn for business purposes and that coverage for damage to the barn was precluded under the policy’s business exclusion. Smith argues, -without citing any authority, that the business exclusion is not applicable because she required the marina to separately insure its boats and employees, thereby exposing State Farm to no business risk, and because her claim arose from a risk unrelated to the presence of the boats inside the barn. We disagree.

A business-purposes exclusion is intended “to confine the homeowner’s policy coverage to nonbusiness risks and to relegate business coverage to a commercial policy.” Erickson, 622 N.W.2d at 140. Such an exclusion further serves to

delete coverage which is not essential to the purchasers of the policy and which would normally require specialized underwriting and rating, and thus keeps premium rates at a reasonable level.

Grossman v. Am. Family Mut Ins. Co., 461 N.W.2d 489, 495 (Minn.App.1990) (quotations omitted), review denied (Minn. Dec. 20, 1990). State Farm argues Smith’s boat-storage business created business risks and liabilities not contemplated by Smith’s homeowner’s policy.

“The focus of a business pursuits exclusion is on the liability-causing conduct.” Erickson, 622 N.W.2d at 140. Although the parties agree that the damage to the barn was not caused by the stored boats, it is clear that Smith’s business conduct — renting the barn for boat storage — created risks and liabilities of which State Farm was unaware until after the barn collapsed and that would properly be insured, as State Farm contends, in a commercial insurance policy. By failing to disclose her conduct, Smith prevented State Farm from knowing the risks it was insuring. See Minneapolis Cablesystems v. City of Minneapolis, 299 N.W.2d 121, 122 (Minn.1980) (stating no contract is created when there is no meeting of minds concerning essential elements of contract).

Furthermore, the clear intent of Smith’s homeowner’s policy, read as a whole, is to exclude from coverage structures used for business purposes. We are unwilling to interpret a homeowner’s policy as insuring unknown business risks that Smith failed to disclose before making a claim and that the policy expressly excludes from coverage. Smith has not met her burden of showing an applicable exception to the exclusion. We therefore conclude that under the policy’s business exclusion, Smith’s undisclosed business conduct precludes coverage regardless of whether the conduct created the risk that materialized in harm.

The policy excludes coverage for structures “rented or held for rental to a person not a tenant of the dwelling, unless used solely as a private garage.” The district court found that because the coverage dispute involved the rented pole barn, the controlling policy provision was the rental exclusion. The court therefore chose not to consider the applicability of the policy’s more general business-purposes exclusion. See Burgi v. Eckes, 354 N.W.2d 514, 519 (Minn.App.1984) (stating that it is a rule of contract construction “that the specific in a writing governs over the general”). The court then concluded that the barn was covered under the private-garage exception to the rental exclusion.

We believe the district court’s construction fails to harmonize the two independent exclusions by permitting Smith to invoke the private-garage exception to the rental exclusion even where, as we have concluded here, her rental activity was undertaken for business purposes. See Current Tech. Concepts, Inc., 530 N.W.2d at 543 (stating that policy provisions should be read so as to give each other meaning). We believe that the intent of the policy is better served by reading the business ex-elusion as precluding coverage for all rental activity undertaken for business purposes, as was Smith’s. We therefore conclude that the business exclusion controlled Smith’s conduct, that Smith was not entitled to invoke the private-garage exception to the rental exclusion, and that the damage to the pole barn that occurred while Smith was renting the barn for business purposes was not covered under Smith’s homeowner’s policy.

DECISION

The district court erred by concluding that Smith was entitled to coverage under the private-garage exception to the policy’s rental exclusion. Under the policy’s controlling business-purposes exclusion, coverage for damage to the pole barn was precluded by Smith’s undisclosed use of the barn for business purposes. State Farm is entitled to summary judgment.

Reversed and remanded.