author: G. BARRY ANDERSON, Judge.

text:
    STATE of Minnesota, Respondent, v. Kevin Patrick PLANTIN, Appellant.
    No. A03-258.
    Court of Appeals of Minnesota.
    July 13, 2004.

      Mark D. Nyvold, Attorney at Law, St. Paul, MN, for appellant.
    Mike Hatch, Attorney General, St. Paul, MN, and Amy Klobuchar, Hennepin County Attorney, David C. Brown, Assistant County Attorney, Minneapolis, MN, for respondent.
    Considered and decided by PETERSON, Presiding Judge; TOUSSAINT, Chief Judge; and ANDERSON, Judge.
   OPINION

G. BARRY ANDERSON, Judge.

Appellant was charged with and tried for attempted murder, first-degree burglary, kidnapping, and second-degree assault, but the district court declared a mistrial. Appellant was retried in December 2002. The jury convicted appellant on all counts, and the district court sentenced appellant. This appeal follows.

FACTS

The undisputed facts of the April 17, 2002, incident

Bernadette Patin (victim) and appellant Kevin Plantin began dating in 1998. On April 17, 2002, a witness saw the front door to the victim’s house swing open and heard someone inside the house yell. The front door then slammed shut. Later that day, Jennifer Cross, the victim’s daughter, and David Soderstrom, the victim’s brother, went to the victim’s house. At the house, Cross looked through a window and saw the victim’s purse on the floor with the contents strewn about. After calling the police, Cross entered the victim’s home through a window. Soderstrom, who also entered the house, saw blood splatters in the house.

Cross and Soderstrom went to look in the garage but could not get in because it was locked. While they were outside the garage, they could hear the victim saying, “Help me” from inside the garage. The victim eventually unlocked the door to the garage and came out. She was bleeding and had duct tape around her wrists and ankles, and collapsed after she came out of the garage. She told Cross, “Help me, I can’t breathe.” The victim told Soder-strom that Plantin had “tried to kill” her.

Emergency personnel arrived at the victim’s house and found the unconscious victim lying on the ground near the garage. The victim had marks on her wrists consistent with being bound, bruises, and a cut on her head.

When police arrived, an officer entered the garage, where there was a strong smell of exhaust, and saw Plantin lying unconscious on the ground. A vacuum hose was connected to the exhaust pipe of the running car, and a knife was on the floor near the driver’s side door. Inside the car, the officer found a woman’s shoe and a picture of the victim and Plantin duct-taped to the dashboard of the car. The officer saw that the overhead garage door had been clamped se that it would not open. Inside the victim’s house, the police found empty rolls of duct or masking tape.

The victim’s statements in the hospital

Emergency personnel took the victim to the hospital, and she lapsed into a coma. When she awoke from the coma a few days later, the victim spoke with Janet Polley, a social worker. The victim told Polley that she could not believe that Plantin had tried .to kill her. The victim also told Laura Harris, a nurse at the hospital, that appellant had tried to kill her.

While still at the hospital, the victim also spoke with her brother about the incident. She told her brother that when she came home the day of the incident, Plantin was waiting for her, and he had a knife. Plan-tin then emptied out the victim’s purse, looking for her gun, and then he hit the victim, causing her to lose consciousness. The victim awoke on the couch, and tried to flee through the front door. Plantin grabbed her, and she yelled as Plantin pushed her back into the house. Plantin dragged the victim through the house and took her to the garage. Plantin kept the victim in the garage while the car in the garage was running and forced her to inhale the exhaust fumes. The victim was able to escape from the garage after Plan-tin lost consciousness from inhaling the fumes.

The victim’s taped interview with Sergeant Michael Green

Approximately one week after the incident, Sergeant Michael Green interviewed the victim at the Cross .home. In the taped interview, the victim recounted the incident, telling Green that Plantin grabbed her by the back of the neck when she walked into her house and then put a knife to her throat. Plantin threw the victim on the floor; she hit her head against the floor and started bleeding. Plantin then duct-taped the victim’s wrists and ankles. The victim tried to escape out the front door and screamed for help, but Plantin restrained her and then dragged her to the garage. Plantin told the victim that they would die together and forced the victim to stay in the car. Plantin hit the victim every time she attempted to escape, but the victim was able to grab the keys and turn the car off. After retrieving the keys and restarting the car, Plantin continued his attempt to asphyxiate the victim by forcing her to inhale the exhaust fumes.

The victim’s testimony at trial

At trial, the victim’s testimony about the incident differed substantially from the statements she had made at the hospital and in her taped interview. The victim testified that she did not remember many of the statements she allegedly made to Cross, Soderstrom, Polley, or Harris. She testified that on the day of the incident she arrived home around 4:45 p.m. and found Plantin was inside the house. Plantin put a knife to her throat and then the victim may have tripped on the carpet. The victim fell to the floor and cut her eye. The victim testified that the next thing she remembered was sitting on the couch with bound hands and feet. The victim tried to make it to the front door, but Plantin stopped her and told the victim that he wanted to die. Plantin and the victim went to the back of the house, arguing about Plantin’s plan to commit suicide.

The victim did not remember how she and Plantin got into the car. Once in the car in the garage, the victim attempted to dissuade Plantin from carrying out his suicide plan. Plantin lay down with his face near the car’s exhaust pipe, and the victim tried to pull him away. The victim then heard Soderstrom’s voice from outside the garage and asked for help. The victim testified that in the interview with Green she did not always tell the truth. Finally, the victim testified that she loved Plantin, hoped to reconcile with him, and had been in contact with him.

Plantin’s testimony at trial

At trial, Plantin testified on his own behalf. He stated that on the day of the incident, he ran into the victim at a gas station, and she gave him the key to her home. Plantin used the key to enter the house, and when the victim returned, Plan-tin confronted her about drug paraphernalia he found in her house. The victim began screaming and Plantin pushed her into the living room where the victim fell and cut her head. When she got up, the victim was screaming, so Plantin slapped her several times and told her to “snap out of it.” The victim then lay on the couch and began crying. Because Plantin thought that he had gravely injured the victim, he taped her wrists so she would not call Cross. Plantin then cut the phone lines to the house and drove his car into the garage. He was so distraught about injuring the victim that he decided to kill himself. Plantin was attempting to asphyxiate himself in the garage when the victim entered the garage through a service door. The victim tried to stop Plantin from committing suicide, but then Plantin lost consciousness. Plantin denied threatening the victim with a knife, dragging her to the garage, or attempting to kill her.

ISSUES
I. Did the district court abuse its discretion by admitting the victim’s statement to Green as substantive evidence?
II. Did the district court abuse its discretion by admitting as impeachment evidence the statements the victim made to Polley, Harris, and Soderstrom?
III. Did the district court abuse its discretion by admitting expert testimony on battered-woman’s syndrome?
IV. Was Plantin denied his constitutional right to a unanimous jury verdict?
V. Did Plantin receive ineffective assistance of counsel?
VI. Did the district court have a conflict of interest and, if so, does this conflict warrant a reversal of Plan-tin’s conviction?

ANALYSIS

I.

Plantin argues that the district court abused its discretion when it admitted into evidence the victim’s statement to Green. Specifically, Plantin argues that (1) under the totality of the circumstances, the victim’s statement did not have the guarantees of trustworthiness necessary for admittance under Minn. R. Evid. 803(24), the catch-all hearsay exception, and (2) the admission of the statement violated his right to confrontation. We disagree.

“Evidentiary rulings rest within the sound discretion of the trial court and will not be reversed absent a clear abuse of discretion. On appeal, the appellant has the burden of establishing that the trial court abused its discretion and that appellant was thereby prejudiced.” State v. Amos, 658 N.W.2d 201, 203 (Minn.2003) (citation omitted).

The district court ultimately determined that the victim’s statement to Green was admissible as substantive evidence under Rule 803(24). The Rule provides that the district court may admit into evidence

a statement not specifically covered by any of the foregoing [hearsay] exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence.

Minn. R. Evid. 803(24).

State v.. Ortlepp, 363 N.W.2d 39, 44 (Minn.1985), sets forth the standard for determining whether the district court abused its discretion in admitting evidence under Rule 803(24). In Ortlepp, the Minnesota Supreme Court concluded that an accomplice’s hearsay statement, which the accomplice later claimed at trial was false, had sufficient circumstantial guarantees of trustworthiness and was admissible under Rule 803(24). Id. Under Ortlepp, a hearsay statement is admissible under Rule 803(24) when: (1) there is no confrontation problem presented by the admission of the statement as substantive evidence because the declarant testifies, admits making the statement, and is available for cross-examination; (2) there is no dispute • that the declarant made the statement or about what the statement contained; (3) the reliability of the statement is increased because it was made against the accomplice’s penal interest; and (4) the statement “is consistent with all the other evidence the state introducéis], evidence which point[s] strongly toward” the guilt of the accused. Id.

Here, the victim testified, she admitted making the prior statements, and Plantin had the opportunity to cross-éxamine her; the first part of the Ortlepp test is therefore satisfied. Further, there was no dispute that the victim made the statement and the contents of the statement were undisputed; thus satisfying the second part of the test. Finally, the victim’s statement to Green was consistent with the evidence introduced at trial that pointed to Plantin’s guilt; the fourth part of the test is thus satisfied.

The third part of the Ortlepp test generally requires that the victim’s statement to Green be against her own penal interests. But this court has found that the third Ortlepp factor may be satisfied even when a declarant’s statement is not against the declarant’s penal interest if the declarant is hostile to the state and supportive of the defendant. See, e.g., State v. Whiteside, 400 N.W.2d 140, 146 (Minn.App.1987) (con-eluding that the district court did not abuse its discretion by admitting under Minn. R. Evid. 803(24) a prior consistent statement of defendant’s girlfriend that incriminated defendant, even though the statement was not against the girlfriend’s penal interests), review denied (Minn. Mar. 18, 1987). We determined that the statement was against the girlfriend’s interests because she was clearly hostile to the prosecution and supportive of her boyfriend, the defendant. Id.

Here, the victim testified that she and Plantin “were trying to reconcile things.” Because the victim’s statement was against her interests in a relationship with Plantin, the third part of the Ortlepp test is satisfied. See Whiteside, 400 N.W.2d at 146 (stating that statements not necessarily against penal interests can still satisfy the third part of the Ortlepp test). The district court did not abuse its discretion when it admitted the victim’s statement to Green as substantive evidence under Rule 803(24) because, under the Ortlepp test, the statement bore sufficient circumstantial guarantees of trustworthiness;

Right to Confrontation

Plantin also argues that the admission of the victim’s statement to Green violated his right of confrontation. We disagree. Both the United States Constitution and the Minnesota Constitution afford an accused the right to confront witnesses who testify against him. See U.S. Const, amends. VI, XIV; Minn. Const, aft. 1, § 6. The primary objective of the Confrontation Clause is to force declarants to testify and undergo cross-examination so that the jury may judge the witness’ credibility. State v. Byers, 570 N.W.2d 487, 494 (Minn.1997). But as the Supreme Court recognized, “the Confrontation Clause guarantees only ‘an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.’ ” Kentucky v. Stincer, 482 U.S. 730, 739, 107 S.Ct. 2658, 2664, 96 L.Ed.2d 631 (1987) (quoting Delaware v. Fensterer, 474 U.S. 15, 20, 106 S.Ct. 292, 88 L.Ed.2d 15 (1985)). See also State v. Greenleaf, 591 N.W.2d 488, 502 (Minn.1999) (quoting the preceding language from Stincer).

Here, the victim testified in the presence of the jury, and Plantin had ample opportunity to cross-examine her about her statement to Green. Plantin clearly was not satisfied with the victim’s answers and lapses in memory, but that does not mean that he was denied his constitutional right of confrontation. Because Plantin had the opportunity to cross-examine the victim before the jury, his right to confrontation was not violated.

Finally, Plantin argues that the admission of the statements used as impeachment evidence raises the same confrontation problem as the admission of the victim’s statement to Green. However, this challenge fails for the same reasons discussed above.

II.

Plantin argues that the district court abused its discretion when it admitted statements made by the victim to Polley, Harris, and Soderstrom. We disagree.

Plantin first argues that the jury may have considered the statements as substantive evidence because the district court did not make an explicit ruling the statements were being admitted for impeachment purposes only. But the district court instructed the jury that some testimony in the trial was admitted only for impeachment purposes and read the instruction on impeachment evidence. In addition, in the course of discussing impeachment evidence, the district court instructed that, “in the case of Bernadette Patín, evidence of any statement she may — I’m sorry, evidence of any statement she may have made to Green may be considered by you for all purposes.” Because the district court differentiated between the victim’s statement to Green, which the jury could consider for substantive purposes, and all other statements that the victim made, which the jury could consider only for impeachment purposes, Plantin’s argument fails.

Plantin next argues that the jury was likely to consider these disputed statements substantively because the state’s closing argument did not distinguish between testimony that was offered substantively from that offered for impeachment purposes. But a defendant who fails to object to the prosecutor’s closing argument or to seek a cautionary instruction ordinarily waives the right to have the issue considered on appeal. State v. Parker, 353 N.W.2d 122, 127 (Minn.1984). Absent an objection at trial or a request for a cautionary instruction, we will grant relief only when there is prosecutorial misconduct and such conduct is unduly prejudicial to the defendant. See id. at 127-128 citing State v. Gunn, 299 N.W.2d 187, 138 (Minn.1980); State v. Flom, 285 N.W.2d 476, 477-78 (Minn.1979).

Here, appellant did not timely object to the prosecutor’s closing statement, so we review the statement to determine if the prosecutor committed misconduct and if that conduct was unduly prejudicial. The prosecutor’s closing statement referred to the impeachment testimony as it summarized the evidence presented at trial. The prosecution told the jury:

You then heard again from David Soder-strom who told you about what the victim, Ms. Patín, told him in the hospital. And you heard from Ms. Polley and Ms. Harris who again provided statements consistent with her state of mind immediately, or shortly after coming out of a coma, with regard to this defendant’s intent.

We conclude the prosecution’s statement does not rise to the level of prosecutorial misconduct that is unduly prejudicial; Plantin’s argument therefore fails.

III.

Plantin argues that the district court abused its discretion when it admitted expert testimony on battered-woman syndrome. We disagree.

“The admission of expert testimony is within the broad discretion accorded a trial court, and rulings regarding materiality, foundation, remoteness, relevancy, or the cumulative nature of the evidence may be reversed only if the trial court clearly abused its discretion.” State v. Ritt, 599 N.W.2d 802, 810 (Minn.1999) (quotation and citation omitted); see also State v. Grecinger, 569 N.W.2d 189, 194 (Minn.1997) (holding reversal requires “apparent error”).

When considering whether to admit expert testimony, the district court must determine whether the testimony will assist the jury in resolving factual questions presented at trial. Minn. R. Evid. 702. Here, the prosecution offered expert testimony on battered-woman syndrome to explain why the victim, who told multiple people about the incident before trial, recanted her story at trial and gave testimony that tended to exculpate Plantin.

In Grecinger the Minnesota Supreme Court concluded:

[EJxpert testimony on battered[-]woman syndrome presented during the prosecution’s case-in-chief is admissible if it is introduced after the victim’s credibility has been attacked by the defense, see Minn. R. Evid. 608(a), if it helps the jury understand the victim’s inconsistent statements or delay in seeking prosecution of the batterer, see Minn. R. Evid. 702, and if the expert merely describes the syndrome and its characteristics and does not offer an opinion as to whether the victim suffers from it, thereby reducing the risk of unfair prejudice to the defendant, see Minn. R. Evid. 403.

Grecinger, 569 N.W.2d at 197. In Grecinger,- the prosecution’s use of expert testimony was appropriate “because it could help the jury understand behavior that might otherwise undermine the complainant’s credibility.” Id. at 196.

Here, the district court specifically found that (1) the victim’s credibility had been attacked by Plantin, and (2) the expert testimony helped the jury understand behavior that would have otherwise undermined the victim’s credibility. In addition, the district court properly limited the scope of the expert testimony to a description of the syndrome and its characteristics, thereby precluding an opinion on whether the victim suffered from the syndrome, as required by Grecinger. In light of Grecinger, the district court did not abuse its discretion in allowing expert testimony on battered-woman syndrome.

IV.

Plantin argues that he was denied his constitutional right to a unanimous verdict. Specifically, Plantin contends that his constitutional right was violated because the district court did not deliver an adequate unanimity instruction to the jury. We disagree.

Defendants have a constitutional right to a unanimous verdict. Minn. R.Crim. P. 26.01, subd. 1(5); see Burns v. State, 621 N.W.2d 55, 61 (Minn.App.2001), review denied (Minn. Feb. 21, 2001). Although a Minnesota appellate court has never directly answered the question, the majority of jurisdictions that have dealt with the issue of whether a defendant’s right to a unanimous jury is violated when the district court’s instruction does not clearly outline the unanimity requirement have held that the right is not violated when the jury is polled. See, e.g., State v. Kircher, 189 Wis.2d 392, 525 N.W.2d 788, 792 (1994) (reasoning that defendant has a constitutional right to a unanimous verdict, not to a unanimity instruction, and that polling the jury satisfied the constitutional right); Hanson v. State, 258 Ga. 564, 372 S.E.2d 436, 438-39 (1988) (concluding that polling the jury satisfies the right to unanimity); State v. Burns, 280 S.W.2d 119, 123 (Mo.1955) (holding error is lacking when defense counsel: • (1) fails to object to the court’s lack of a unanimity instruction; (2) fails to request such an instruction; or (3) fails to request the jury be polled); State v. Sturdivant, 304 N.C. 293, 283 S.E.2d 719, 728 (1981) (stating that the right to have the jury polled when no unanimity instruction is delivered satisfies defendant’s right to a unanimous verdict). Here, the district court polled the jurors after the verdict was read to ensure unanimity.

We' adopt the reasoning of the majority of jurisdictions and conclude that the unanimity requirement is satisfied if the district court polls the jury after the verdict has been reached to ensure unanimity. Here, Plantin’s unanimity challenge fails because the district court polled the jurors to ensure unanimity. Although the better protection is to give a clear jury instruction on the unanimous verdict requirement, we conclude that polling the jury sufficiently safeguarded Plantin’s constitutional right to a unanimous verdict, and we decline to reach Plantin’s argument that the district court’s unanimity instruction to the jury was inadequate.

V.

Plantin argues that because his lawyer did not investigáte a witness who allegedly would have testified that Plantin had a key to the victim’s house and did not break into the house on the day of the incident, he received ineffective assistance from counsel. We disagree. “The 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.’ [(citation omitted)] ‘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)). But an attorney’s decisions regarding trial tactics are discretionary, and we will not later review those decisions in the ineffective-assistance-of-counsel analysis. Voorhees v. State, 627 N.W.2d 642, 651 (Minn.2001). Plantin’s attorney apparently refused to investigate the witness Plantin complains of because the investigation would have “hurt more than it would help.” Plantin’s challenge fails because his attorney’s decision not to investigate a witness was a strategic decision related to trial tactics, and we will not review this type of decision.

VI.

Plantin argues that the district court judge had a conflict pf interest because she was the judge who granted the victim an order for protection against Plantin in April 2002. Plantin argues that several of the district court’s evidentiary rulings reflected this bias. But Plantin never objected to the district court judge before or at trial. After a defendant submits to trial before a judge without objecting to the judge on the basis of bias, we will reverse the defendant’s conviction only if the defendant can show actual bias in the proceedings. State v. Moss, 269 N.W.2d 732, 735 (Minn.1978). Plantin has not demonstrated any actual bias by the district court judge in his case.

DECISION

Because we conclude: (1) the district court did not abuse its discretion in its evidentiary rulings; (2) Plantin was not denied his constitutional right to a unanimous jury; (3) Plantin received effective assistance of counsel; and (4) Plantin failed to prove that the district court was actually biased against him, we affirm Plantin’s conviction.

Affirmed.

      . Plantin argues that Ortlepp is not applicable after the United States Supreme Court decision in Idaho v. Wright, 497 U.S. 805, 826-27, 110 S.Ct. 3139, 3152-53, 111 L.Ed.2d 638 (1990). But the Wright decision deals with an unavailable declarant. Id. at 814, 110 S.Ct. at 3146. Here, the declarant — the victim— actually testified. Because the victim was an available declarant, this case is similar to Oliver v. State, 502 N.W.2d 775, 777 (Minn.1993). In Oliver, the hearsay declarant was available and testified at trial. Id. Based on these facts, the Minnesota Supreme Court applied the Ortlepp four-step test to determine if the testimony was admissible. Id. In light of the Oliver precedent, we apply the Ortlepp test here.

      . Plantin asserts that Crawford v. Washington, - U.S. -, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), is relevant to the determination of his confrontation clause challenge. In Crawford, the Supreme Court concluded, "where testimonial evidence is at issue ... the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination.” Id. at 1374. But the Court stated in a footnote on an earlier page in the opinion, "Finally, we reiterate that, when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of [her] prior testimonial statements.” Id at 1369 n. 9. Under the facts of this case, Crawford does not support Plantin’s contention that his right to confrontation has been violated.

      . The appropriate unanimous verdict jury instruction is:
      In order for you to return a verdict, whether guilty or not guilty, each juror must agree with that verdict. Your verdict must be unanimous.
      You should discuss the case with one another, and deliberate with a view toward reaching agreement, if you can do so without violating your individual judgment. You should decide the case for yourself, but only after you have discussed the case with your fellow jurors and have carefully considered their views. You should not hesitate to reexamine your views and change your opinion if you become convinced they are erroneous, but you should not surrender your honest opinion simply because other jurors disagree or merely to reach a verdict.
      Minn. CRIMJIG 3.04 (1999).


source: Caselaw Access Project

author: MINGE, Judge.

license: Public Domain

text:
    WALETICH CORPORATION, Relator, v. COMMISSIONER OF EMPLOYMENT AND ECONOMIC DEVELOPMENT, Respondent.
    No. A03-1739.
    Court of Appeals of Minnesota.
    July 13, 2004.

      Christopher P. Rosengren, Gislason & Hunter, LLP, Mankato, MN, for relator.
    Lee B. Nelson, Linda A. Holmes, St. Paul, MN, for respondent.
    Considered and decided by HALBROOKS, Presiding Judge; HARTEN, Judge; and MINGE, Judge.
   OPINION

MINGE, Judge.

Relator challenges the decision by the commissioner’s representative dismissing its appeal as untimely. On appeal, relator argues that an alleged telephone conversation it had with the department, which occurred within the 30-day appeal period, was an effective appeal and permissible under Minnesota law. We affirm.

FACTS

On December 24, 2002, respondent Minnesota Department of Employment and Economic Development mailed a notification to relator Waletich Corporation (Waletich) of its succession determination, naming Waletich as successor of B.C. Cartage, Inc. The notification contained information regarding Waletich’s right of protest and appeal, and indicated that Wa-letieh had 30 days in which to file its appeal. Waletich claims that it made a number of phone calls to the department prior to. the expiration of the 30-day appeal period.

Waletich filed a written appeal on July 2, 2003, which was 160 days after the time for appealing the initial department determination had expired. The unemployment law judge dismissed relator’s appeal. The commissioner’s representative affirmed the finding that it lacked jurisdiction to consider the merits of the appeal because the appeal was untimely. Realtor now appeals the decision of the commissioner’s representative to this court.

ISSUE

Did relator’s alleged phone calls to the Department of Employment and Economic Development constitute a timely appeal?

ANALYSIS .

The decision of the commissioner’s representative to dismiss an appeal as untimely is a question of law that we review de novo. Stottler v. Meyers Printing Co., 602 N.W.2d 916, 918 (Minn.App.1999). The Minnesota Supreme Court has held that the statutory time for appeal is “absolute and unambiguous.” Semanko v. Dep’t of Employment Servs., 309 Minn. 425, 430, 244 N.W.2d 663, 666 (1976). “[Statutes designating the time for appeal from decisions of all levels of the Department [of Employment and Economic Development] should be strictly construed.... ” King v. Univ. of Minn., 387 N.W.2d 675, 677 (Minn.App.1986), review denied (Minn. Aug. 13, 1986). “An agency is deprived of jurisdiction to review its decision if a timely appeal is not filed as required by statute.” In re Emmanuel Nursing Home, 411 N.W.2d 511, 516 (Minn.App.1987), review denied (Minn. Oct. 13, 1987).

We consider relator’s argument that, when read together, Minn.Stat. §§ 268.051, subd. 4 and 268.035, subd. 17 (2002), allow for appeals by telephone. Minn.Stat. § 268.051, subd. 4(f), provides for appeals from tax succession determinations and states:

The commissioner, upon the commissioner’s own motion or upon application of an employer shall determine if an employer is a successor within the meaning of this subdivision and shall send the determination to the employer by mail or electronic transmission.' The determination shall be final unless an appeal is filed by the employer within 30 calendar days after the sending of the determinátion. Proceedings on the appeal 'shall be conducted in accordance with section 268.105.

The statute defines “filed” or “filing” as:

[T]he delivery of any document to the commissioner ... or depositing of the document in the United States mail properly addressed, to the department with postage prepaid....
If, where allowed, an application, protest, appeal, or other required action is made by telephone or electronic transmission, it shall be considered filed on the day received by the department.

Minn.Stat. § 268.035, subd. 17.

Relator contends that the statute does not specifically provide for when telephone appeals are permitted. Therefore, according to relator, because the definition of “filed” alludes to appeals made by telephone, such a method must be permissible for all appeals. Relator further argues that because the statute allows for withdrawals of appeals to be made by telephone, then it follows that the appeal itself may be permissibly filed by telephone. See Minn.Stat. § 268.105, subd. 3 (2002) -(allowing for withdrawals of appeals by telephone).

Contrary to relator’s contention, the statute does specifically address when telephone appeals are allowed. Minn.Stat. § 268.103, subd. 1 (2002), in part, states:

(a) Unless the statutory provision providing for an appeal requires that the appeal be in writing, the commissioner shall have the discretion to allow an appeal to be made by telephone or by electronic transmission. If the commissioner allows an appeal to be made by telephone or by electronic transmission, that shall be clearly set out on the determination or decision subject to appeal.
(b) The commissioner may restrict the conditions under which an appeal by telephone or electronic transmission may be made. Any restrictions ... or other conditions, shall be clearly set out on the determination or decision subject to appeal.

First, we note that no testimony was taken before the unemployment law judge, and there is no other indication in the record providing evidence of relator’s alleged telephone calls to the department. But even assuming that Waletich did make telephone contact with the department, its argument must fail. Under Minn.Stat. § 268.103, subd. 1, telephone appeals are only permitted only where the commissioner has clearly set out in its determination that such a method is permissible. Here, the succession determination mailed to Waletich specifically stated:

The above determination will become final unless a written rate of protest or succession appeal is filed within thirty days of the date of this letter. The filing date is the date of delivery to this department or of cancellation by the U.S. Postal Service. Your letter must identify the determination and briefly state the basis for your protest or appeal.

(Emphasis added.)

The determination clearly states that Waletich was required to file a written appeal within 30 days of the date of the letter. The date of the letter is December 24, 2002. Waletich did not file a written appeal until July 2, 2003 — 160 days after the time for appeal expired. Further, there is no “clearly set out” statement on the determination indicating that the commissioner would allow for Waletich to file its appeal by telephone. Accordingly, even assuming that Waletich did contact the department by telephone, such alleged conversations do not constitute the “filing” of an appeal.

DECISION

Because Waletich failed to file a timely appeal, the department was deprived of jurisdiction, and relator’s appeal was properly dismissed.

Affirmed.


text:
    POPE COUNTY BOARD OF COMMISSIONERS, Respondent, v. John PRYZMUS, Appellant.
    No. A03-1634.
    Court of Appeals of Minnesota.
    July 13, 2004.

      Belvin Doebbert, Pope County Attorney, Chad M. Larson, Assistant County Attorney, Glenwood, MN, for respondent.
    Michael L. Puklich, Jr., Neaton, Puklich & Klassen, Minnetonka, MN, for appellant.
    Considered and decided by HARTEN, Presiding Judge; HALBROOKS, Judge; and MINGE, Judge.
   OPINION

MINGE, Judge.

Appellant argues that the issues litigated in this proceeding were not identical to those previously litigated in another proceeding and challenges the district court’s use of collateral estoppel to grant respondent summary judgment. Because we find that appellant attempts to relitigate an issue identical to that decided previously, we affirm.

FACTS

In 1991, appellant John Pryzmus purchased land containing a one-level cabin on Lake Leven in Pope County, Minnesota. The cabin, built in 1972, had a setback of approximately 145 feet from the ordinary high-water level. On November 28, 2000, appellant applied to the county for a permit to build a residence on the property. The county office manager explained the ordinances applicable to appellant’s proposed building project, including a 200-foot setback from the lake requirement for new structures. She also explained that if the proposed structure is an addition, and if 50% of the value of the existing structure is removed, it is considered a new structure and must also comply with the 200-fo ot-s etb ack requirement. Appellant’s plan measurements showed a setback from the lake of about 150 feet and he indicated to the county that he was building an addition to the existing cabin, not a new structure.

The county approved the building permit based on information provided by appellant. In May 2001, appellant completely dismantled the existing cabin. However, he saved the furnace, some plumbing fixtures, some lumber, the kitchen cabinets, and the front door and stoop to use in the new structure, which was built on the same site.

In July 2001, the county observed that the old cabin had been completely removed and replaced with a new, wood-frame structure. It concluded that construction of this structure exceeded appellant’s permit and told him to seek a variance allowing the structure to be closer than the required 200-foot setback. Appellant applied for the variance in October 2001, which the Pope County Board of Adjustment denied. Appellant appealed the variance denial to the district court, and on October 10, 2002, the district court affirmed the denial.

On March 5, 2003, Pope County brought an action seeking an order directing appellant to abate the violation by removing the offending structure within one year, authorizing the county to remove the offending structure if the violation was not abated within the specified time, and authorizing the county to recover costs. Appellant denied violating any applicable Pope County ordinances. Pope County moved for summary judgment, and on August 27, 2003, the district court granted the motion. The court took judicial notice of the findings of fact and conclusions of law from the October 10, 2002 order affirming the denial of the variance application. It specifically found that (1) appellant proposed to place his “new” house 145 feet from the ordinary high-water mark, contrary to the 200-foot setback required under County Land Use Controls Ordinance § 4.4.4; and (2) because appellant completely dismantled the existing cabin, the new structure was required to be at the 200-foot setback. The court found that the same issues had already been litigated in the action regarding appellant’s variance application and, based on the doctrine of collateral estop-pel, granted summary judgment for the county.

ISSUE

Did the district court err in granting summary judgment based on collateral es-toppel?

ANALYSIS

“On an appeal from summary judgment, we ask two questions: (1) whether there are any genuine issues of material fact and (2) whether the lower courts erred in their application of the law.” State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990). No genuine issue of material fact exists “[wjhere the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party....” DLH, Inc. v. Russ, 566 N.W.2d 60, 69 (Minn.1997) (quotation omitted). We “must view the evidence in the light most favorable to the party against whom judgment was granted.” Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn.1993).

“Collateral estoppel bars the re-litigation of issues which are both identical to those issues already litigated by the parties in a prior action and necessary and essential to the resulting judgment.” Heine v. Simon, 674 N.W.2d 411, 421 (Minn.App.2004) (quotation omitted). Collateral estoppel is applicable where (1) the issue was identical to one in a prior adjudication; (2) there was a final judgment on the merits; (3) the estopped party was a party or in privity with a party to the prior adjudication; and (4) the estopped party was given a full and fair opportunity to be heard on the adjudicated issue. Id

The availability of collateral’ es-toppel is a mixed question of law and fact subject to de novo review. Falgren v. State, Bd. of Teaching, 545 N.W.2d 901, 905 (Minn.1996). “Once it . is determined that collateral estoppel is available, the decision to apply the doctrine is left to the trial court’s discretion.” In re Trusts Created by Hormel, 504 N.W.2d 505, 509 (Minn.App.1993),. review denied (Minn. Oct. 19, 1993). The district court’s decision to- apply collateral estoppel will be reversed only upon a demonstrated abuse of discretion. Saudi Am. Bank .v. Azhari, 460 N.W.2d 90, 92 (Minn.App.1990).

Pope County Land Use Controls Ordinance § 4.4.4, requires a structural setback of 200 feet from the ordinary high-water level. Pope County, Minn., Land Use Controls Ordinance § 4.4.4 (1972). But § 10.16.2 contains a “grandfather clause,” providing that “[a]ny lawful use existing at the time ... of this ordinance which would be considered as a non-conforming use or structure may be- continued except that the expansion, alteration, or enlargement of such use or structure may be restricted to prevent increasing the non-conformity.” Id. at § 10.16.2. Section 10.16.4 provides that if a non-conforming structure or a structure with substandard setback is “removed or destroyed by any means to an extent of more than fifty (50) percent of its replacement cost at the time of destruction, it shall not be reconstructed or relocated except in conformity with the provisions of this ordinance.” Id. at § 10.16.4.

Appellant does not argue that there are genuine issues of material fact. Rather, appellant argues that the district court misapplied the doctrine of collateral estop-pel because the issues litigated in the two separate proceedings were not identical. According to appellant, the issues litigated in the appeal of the variance denial were whether the County Board of Adjustment’s denial of appellant’s request was reasonable, whether appellant established undue hardship for the purposes of obtaining a variance, and whether appellant was afforded due process in the proceedings. Appellant argues that the issue in the instant case is whether appellant is exempt from complying with Pope County Land Use Controls Ordinance § 4.4.4. Appellant argues that the denial of the variance, and not the applicability of the ordinance, was the only issue before the district court in the variance appeal.

The district court in the variance denial made several findings of fact and conclusions of law relevant to the disposition of this case. The findings of fact included a finding that appellant was told of the ordinance requirements when he applied for and received a permit for an addition and that appellant completely dismantled the old cabin, constructing a new residence in its place. As a result of this finding, appellant was subject to the 200-foot setback. The district court’s conclusions of law stated that: (1) appellant’s proposal to place his new house with only a 145-foot setback was contrary to the required 200-foot setback under County Land Use Controls Ordinance § 4.4.4; (2) the variance denial was reasonable; (3) appellant failed to establish undue hardship; and (4) appellant was afforded due process in the proceedings. The district court’s memorandum of law found that appellant’s original existing cabin was permitted under the “grandfather clause” exception of County Land Use Controls Ordinance § 10.16.2 to the 200-foot setback requirement of Ordinance § 4.4.4. The court also found that sufficient lot space existed for appellant to rebuild a new structure and meet the 200-fooi^setback requirement.

From the record, it is evident that the district court in the variance-denial appeal could not have made its findings without deciding the issues of whether and how the ordinance applied to appellant. Inherent to the court’s determination of whether the Board’s variance denial was reasonable was the applicability of the ordinance to appellant. In its opinion, the district court stated that the standard of review for zoning matters is whether the local authority’s action was reasonable and that “in variance cases, reasonableness is measured by the standards set out in local ordinance and not the standards contained in [state] statute.” (quoting VanLandschoot v. City of Mendota Heights, 336 N.W.2d 503, 508 n. 6 (Minn.1983)) (emphasis added). The court specifically addressed the Ordinance § 4.4.4’s requirement of a 200-foot setback and the “grandfather clause.” The district court had to interpret the local ordinance in question and determine its applicability to appellant. We conclude that the issue in the current appeal is identical to the one previously adjudicated and that appellant’s argument is without merit.

Appellant also argues that the issue in this appeal was not necessary and essential to the prior judgment. But unless the district court interpreted and applied the ordinance to appellant’s property, it could not have satisfied the reasonableness of the denial of the variance. Thus, the issue of the applicability of the ordinance was both necessary and essential to the earlier judgment.

We also conclude that the district court’s findings in the appeal of the variance denial satisfy the remaining elements of collateral estoppel and are not disputed by the parties. There was a final adjudication on the merits. The same parties are present in both proceedings. Appellant was given a full and fair hearing, on the issue in the prior adjudication and was afforded due process.

We note that precluding relitigation here is an equitable result, consistent with the facts on the record and caselaw in this state. Appellant was afforded various opportunities to address the applicability of the ordinance in question. He had numerous chances to determine whether the ordinance applied and whether he was exempt from compliance. Appellant had one such opportunity when he applied for the building permit and discussed his application with the county. In fact, the county specifically informed him that if the building were a new structure, or an addition that removes 50% of the value of the existing structure, it would have to conform to the 200-foot setback. Appellant was presented with another opportunity during his application for a variance before the County Board of Adjustment. Lastly, appellant could have made his argument in his appeal of the denial of the variance before the district court. To allow appellant to deny violating any applicable ordinance in the current case would be to let him pursue what is essentially the same claim in a second proceeding. This would be a waste of limited judicial resources and would encourage future parties to do the same. Furthermore, we note that the district court in the appeal of the variance made a specific finding in an appealable order that appellant’s cabin, located on Lake Leven, was subject to the 200-foot setback under the Pope County Land Use Controls Ordinance. See Dieseth v. Colder Mfg. Co., 275 Minn. 365, 369-70, 147 N.W.2d 100, 102-03 (1966) (“An appealable order affecting substantial rights, if the matter in question has been fully tried, is as conclusive upon the issue decided as would be a final judgment.”)

The district court in the prior appeal of the denial of appellant’s variance made its findings based- on its reading of the applicable sections of the ordinance as applied to appellant’s property. In the current appeal, it cannot.be said that the district court abused its discretion in applying collateral estoppel. Because there are no genuine issues of material fact and the district court did not err in applying the law, we affirm the grant of summary judgment in favor of the county.

DECISION

The district court did not err in granting summary judgment based on collateral es-toppel because the issues litigated in the two proceedings were the same.

Affirmed.


author: FORSBERG, Judge.

text:
    Brent A. JOHNSON, Respondent, v. Jill M. WRIGHT, f/k/a Jill Gavle, Appellant.
    No. A03-1511.
    Court of Appeals of Minnesota.
    July 13, 2004.

      Sharon K. Hills, Severson, Sheldon, Dougherty & Molenda, P.A., Apple Valley, MN, for respondent.
    Richard G. McGee, Brooklyn Park, MN, and Nathan M. Hansen, North St. Paul, MN, for appellant.
    Considered and decided by KLAPHAKE, Presiding Judge; STONEBURNER, Judge; and FORSBERG, Judge.
   OPINION

FORSBERG, Judge.

Appellant assigned to respondent some proceeds from litigation against her former employer in exchange for respondent’s payment of litigation costs, and assigned a percentage of her daughter’s benefits from tribal enrollment in exchange for payment of costs associated with enrollment. Appellant also signed a note for some of the funds advanced by respondent. In this action, respondent sued appellant for recovery of funds pursuant to the assignment, and the district court granted summary judgment in his favor. Appellant contends that (1) the agreements constitute maintenance and champerty and violate Minnesota law; (2) the agreement relating to the minor child’s potential tribal benefits is an invalid assignment of a minor’s rights by a parent and is null and void; (3) the district court lacks jurisdiction over monies disbursed by a federally recognized tribe to its member; and (4) because respondent failed to list agreements or notes with appellant as an asset in his personal bankruptcy filing, he is estopped from pursuing those claims under judicial estoppel and lacks standing to do so. Because the note is a valid agreement between the parties, we affirm the district court’s finding that respondent is entitled to full payment on the note. But because we conclude that the assignment agreements are champertous, we reverse the district court’s ruling that the agreements are enforceable.

FACTS

In 1994, appellant Jill Wright sues Little Six, Inc., d/b/a Mystic Lake Casino; Leonard Prescott; Arlene Rose; and William Johnson. At about the same time, appellant sought to enroll her daughter, M.W., into the Shakopee Mdewakanton Sioux Tribe (the tribe) as a member. Because appellant could not afford her attorney’s retainer fee, respondent Brent Johnson, through his business, Money Changer LLC (MCM), agreed to financially assist appellant with her litigation expenses.

Throughout the litigation, respondent and/or his company financially assisted appellant with her litigation, enrollment, and personal expenses. In consideration of the funds loaned to appellant, the parties executed an assignment agreement wherein appellant assigned to respondent “a total of 27.67% of her right, claim and interest in and to any and all recovery by her, through suit, arbitration, settlement or otherwise, from all of her causes of action arising on or before September 14, 1994 against Little Six, Inc. d/b/a Mystic Lake Casino[.]” Respondent’s loan was also secured by a promissory note (the Note) executed in November 1999 and payable to MCM in the amount of $140,000, plus annual interest at the rate of four percent. As the sole owner of MCM, respondent assigned the Note to himself.

Appellant settled her lawsuit in the fall of 2000. The district court ordered the settlement confidential and sealed the records. It is undisputed that appellant received a substantial monetary recovery. Also in the fall of 2000, M.W. was enrolled in the tribe as a member, which provided her with the right to receive per capita and other distribution payments.

In November 2000, appellant directed her attorney to disburse to respondent $38,976.22 from her litigation settlement proceeds that were held in the firm’s trust account. But because the district court ordered that the settlement be confidential, respondent has no evidence of appellant’s total settlement recovery to determine if the $38,976.22 represents the agreed upon 27.67% of the recovery. In addition, respondent claims that as additional consideration for financing appellant’s legal actions, appellant assigned to him seven percent of all proceeds received by either appellant, her daughter, or a third party for the benefit of her daughter, from Little Six, Inc., and/or the tribe as a result of M.W.’s tribal membership enrollment, including M.W.’s per capita and other distributions resulting from enrollment.

Respondent commenced this action against appellant to enforce the Note and the two assignment agreements and moved for summary judgment. The district court granted summary judgment in favor of respondent on the Note in the amount of $140,000, plus interest. The district court also ordered appellant to provide respondent with a copy of the settlement agreements and an accounting of any and all monies received by appellant. Finally, the district court ordered appellant to pay respondent the amount claimed under the two assignment agreements subject to court approval of assignment of M.W.’s funds under Minn. R. Gen. Pract. 145.01. This appeal followed.

ISSUES

I. Did the district court err by granting summary judgment in favor of respondent on the basis that the Note and the assignment agreements were valid and did not constitute champerty and maintenance?

II. Did the district court have subject matter jurisdiction to enforce the assignment agreements between appellant and respondent?

III. Did the district court err by rejecting appellant’s claim of judicial estop-pel concerning the assignment agreements, which respondent did not claim as assets in his 1998 involuntary bankruptcy proceeding?

IV. Are- there documents in appellant’s appendix that are outside the district court record and should be stricken by this court?

ANALYSIS

I.

Summary judgment is proper when “the pleadings,. depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that either party is entitled to a judgment as a matter of law.” Minn. R. Civ. P. 56.03. On appeal from summary judgment, we ask whether there are any genuine issues of material fact in dispute and whether the district court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990). Reviewing courts must view the evidence in a light most favorable to the party against whom judgment was granted. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn.1993). The moving party bears the burden of demonstrating that no material fact issues exist. Thiele v. Stich, 425 N.W.2d 580, 583 (Minn.1988). This court need not give deference to a district courts decision on a purely legal issue. Modrow v. JP Foodservice, Inc., 656 N.W.2d 389, 393 (Minn.2003).

Appellant argues that the district court erred by granting summary judgment in favor of respondent because the entire transaction between the parties constituted maintenance and champerty, and was therefore void as a matter of public policy. Champerty is defined as “[a]n agreement between a stranger to a lawsuit and a litigant by which the stranger pursues the litigants claims as consideration for receiving part of any judgment proceeds.” Blacks Law Dictionary 224 (7th ed.1999). Similarly, maintenance is defined as “[ajssistance in prosecuting or defending a lawsuit given to a litigant by someone who has no bona fide interest in the case; meddling in someone else’s litigation.” Blacks Law Dictionary 965 (7th ed.1999).

The general purpose of the law against champerty and maintenance was to prevent officious intermeddlers from stirring up strife and contention by vexatious or speculative litigation which would disturb the peace of society, lead to corrupt practices, and pervert the remedial process of the law. The principle upon which it proceeded was the contracts conducive of such results were against public policy.

Huber v. Johnson, 68 Minn. 74, 79, 70 N.W. 806, 807 (1897).

A. Champerty and Maintenance in Minnesota

Case law in Minnesota concerning cham-perty and maintenance is neither abundant nor recent. We therefore begin our analysis with the 1897 case of Huber v. Johnson, in which the defendant had a claim for damages against a railway company. 68 Minn, at 76, 70 N.W. at 806. The defendant and the plaintiff entered into a contract by which the plaintiff, who was a stranger to both the defendant and the claim, was to employ an attorney and institute a lawsuit in the name of the defendant for the collection of the claim, but wholly at the plaintiffs own cost. Id. The agreement stipulated that, as compensation for his services, the plaintiff was entitled to an amount equal to one-half of what was collected. Id. If nothing was collected, the agreement further stipulated that the plaintiff would not charge anything for his services. Id. Finally, as per the agreement, the defendant was not to settle the claim without the plaintiffs written consent, but if the claim was settled without the plaintiffs consent, the defendant was obligated to pay the plaintiff a fixed and arbitrary sum. Id. at 76-77, 70 N.W. at 806-07.

After plaintiff employed an attorney and brought an action to collect on behalf of defendant, the defendant settled the claim with the railway company without plaintiffs consent. Id. at 77, 70 N.W. at 807. The plaintiff then brought suit against defendant to enforce their agreement. Id. The defendant argued that the contract was champertous and void as against public policy. Id. The Minnesota Supreme Court agreed, explaining that the contract was void as champertous because plaintiff was a stranger to both defendant and the claim, and had no object in intermeddling in the matter except pure speculation. Id. at 79, 70 N.W. at 808. The court went on to hold that the most objectionable provision of the contract was the portion requiring that defendant gain plaintiffs written consent before settling the claim; if defendant settled without written consent, then plaintiff was entitled to a fixed and arbitrary sum, without any regard to the amount or value of the services that plaintiff may have performed. Id.

The issue of champerty and maintenance was most recently before the supreme court in Hackett v. Hammel, 185 Minn. 387, 388, 241 N.W. 68, 69 (1932), where defendant was engaged in litigation regarding a northern Minnesota iron mine. Pursuant to an agreement between the parties, plaintiff advanced $705 to defendant to assist in the litigation. Id. The terms of the agreement specified that “if said defendant was successful in said litigation, the defendant would pay to plaintiff ten times the amount so advanced out of the proceeds of the recovery, while if the defendant was unsuccessful in said litigation ... the defendant was to repay plaintiff nothing.” Id.

Ultimately, defendant was successful in the litigation, and he repaid plaintiff $700. Id. No more was paid to plaintiff until a few years later when defendant gave plaintiff a promissory note for $3,200 in supposed settlement of the matter. Id. The plaintiff then brought suit against defendant, and defendant prevailed. On appeal, the supreme court noted that plaintiff, who was a layman with no interest in the lawsuit or its subject matter and no relation to defendant, advanced money to carry on the litigation, not as a loan, but to speculate upon and purchase a share in the outcome. Id. The court reiterated that if defendant lost in the litigation matter, plaintiff would get nothing, but if defendant won, plaintiff was entitled to ten times his investment. Id. In holding that the agreement was champertous and therefore void, the court stated:

Such speculation in litigation in which the adventurer has no interest otherwise, and where he is in no way related to the party he aids, is champertous. The element of intrusion for the purpose of mere speculation in the troubles of others introduces the vice fatal to what otherwise would be a contract.

Id.

Respondent argues that the present case is distinguishable from Huber and Hackett because, unlike Huber, respondent did not hire appellant’s attorney, nor did he undertake to prosecute appellant’s suit against Little Six. Respondent also contends that he simply financed appellant’s legal matters and, unlike Huber, respondent had no control over appellant’s legal matters. And unlike Hackett, respondent contends that the money he advanced to appellant was a loan, as evidenced by the Note. Respondent asserts that appellant was required to repay the money regardless of the result in her litigation and enrollment matters, and therefore his involvement in the matter was not mere speculation.

In order to determine whether the agreements are champertous, an examination of the contents of the Note is appropriate to establish the Note’s effect on the parties’ agreements. The record reflects that because appellant could not afford to pay her attorney’s retainer, respondent loaned her the money to assist her with her legal expenses. The Note stipulates that

[appellant] promises to pay to the order of [respondent], the principal sum of One Hundred Forty Thousand Dollars ($140,000), including interest on the unpaid principal amount hereof outstanding from time to time at the rate of four percent (4%) per annum, from the date hereof. The entire indebtedness - hereunder, including all principal and accrued interest shall be due and payable upon demand by Payee, but in no event shall such amount be due- prior to the time [appellant] receives a recovery, if any, from the litigation entitled Jill Gavle v. Little Six, Inc. et al.

Although the Note specifies that respondent could not demand payment until after the litigation was decided, the Note.was not contingent on the outcome of the litigation. If repayment of the Note were contingent upon appellant recovering in her litigation, the agreement would be considered champertous. See Hackett, 185 Minn, at 387-88, 241 N.W. at 69; see also Huber, 68 Minn, at 79, 70 N.W. at 808. But the last sentence of the Note requires appellant to repay respondent the full $140,000, plus interest. Because respondent had an expectation that the $140,000 would be repaid, regardless of the outcome of the litigation, we conclude that the Note was a valid loan made to appellant. Therefore, the Note is not champertous, and the district court did not err by granting summary judgment to respondent for the full amount of the Note, plus interest.

Appellant argues that notwithstanding the validity of the Note, the 27.67% assignment agreement is champer-tous. We agree. The record reflects that the 27.67 assignment agreement was executed on April 8, 1997. The record also reflects that the Note was executed on November 1999, well after the execution of the 27.67 assignment agreement. The 27.67% assignment agreement makes no mention of repayment for monies loaned to appellant. In fact, the assignment agreement merely states that

[f]or and in Consideration Of the sum of [$1.00] and other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, [appellant] does hereby Sell, Transfer, and Assign to [respondent] ... a total of 27.67% of her right, claim and interest in and to any and all recovery by her, through suit, arbitration, settlement or otherwise, from all of her causes of action arising on or before September 14, 1994 against Little Six, Inc....

Based on the language of the agreement, appellant was required to transfer 27.67% of her recovery in the litigation to respondent. But had there been no recovery, respondent would have been entitled to nothing. Through this agreement, respondent effectively intermeddled and speculated in appellant’s litigation and its outcome. We conclude that because recovery is tied to the outcome of the litigation, the 27.67% agreement is champer-tous. See Black’s Law Dictionary 224 (7th ed.1999) (stating that an agreement between a stranger to a lawsuit and a litigant by which the stranger pursues the litigants claims as consideration for receiving part of any judgment proceeds is champertous).

Appellant also contends that the seven percent assignment agreement regarding M.W.’s enrollment is champertous. As with the 27.67% agreement, the seven percent agreement was executed more than a year before the execution of the Note and does not set forth the amount loaned to appellant or require repayment of the loan despite the outcome of enrollment efforts. Rather, the agreement states that in exchange for the amount of money expended by respondent to cover the expenses associated with M.W.’s enrollment with the tribe, respondent is entitled to seven percent of all proceeds paid to M.W. after enrollment as a tribal member.

Based on the plain language of this agreement, we conclude that the agreement is champertous. See id. Respondent offered to pay the expenses associated with M.W.’s tribal enrollment. The agreement says nothing about repayment of these expenses. Instead, respondent was only entitled to the seven percent if and when M.W. was successfully enrolled as a tribal member. Such an agreement in which respondent had no interest otherwise, and when he is in no way related to the party he aids, is champertous and void as against public policy. Hackett, 185 Minn, at 388, 241 N.W. at 69.

B. Champerty and Maintenance Throughout the United States

Respondent argues that even if the agreements are champertous, this court should reevaluate its position on the doc1 trine of champerty and maintenance. In support of his contention, respondent asserts that many states, such as South Carolina and Massachusetts, have completely abandoned the champerty doctrine because many of the public policy reasons behind institution of the doctrine no longer exist. See, e.g., Saladini v. Righellis, 426 Mass. 231, 687 N.E.2d 1224, 1226-27 (1997) (holding that the champerty doctrine is no longer needed to.protect against the evils once feared, such as speculation in lawsuits, the bringing of frivolous lawsuits, or financial overreaching by a party of superi- or bargaining position because there are now other devices that more. effectively accomplish these ends); Osprey, Inc. v. Cabana Ltd. P’ship, 340, S.C. 367, 532 S.E.2d 269, 277 (2000) (abolishing cham-perty as a defense because other well-developed principles of law can more effectively accomplish the goals of, preventing speculation in groundless lawsuits and the filing of frivolous suits than dated notions of champerty).

Although a few states have modified or abandoned the champerty doctrine, many still apply the doctrine. The Ohio Supreme Court recently held that an agreement similar to the agreement in the present case was void because it constituted champerty. Rancman v. Interim Settlement Funding Corp., 99 Ohio St.3d 121, 789 N.E.2d 217 (2003). In that case, a car accident victim entered into contracts with two settlement funding corporations prior to resolution of her case with the insurer, whereby the corporations- forwarded the victim money in exchange for a percentage of the funds she would collect from the insurer. Id. at 218-19. Following a settlement with the insurer, the victim refused payment on the contracts with the corporations, but tendered a return of the monies advanced to her, with interest. Id. at 219. The victim then filed suit against the corporations, séeking rescission of the contracts and a declaratory judgment. Id. The court stated that, except as otherwise permitted by legislative enactment or the Code of Professional Responsibility, a contract making the ■ repayment of funds ad- ' vanced to a party to a pending case contingent on the outcome of that case is void as champerty and maintenance. Id. at 221 (stating that such an advance constitutes champerty and maintenance because it gives a nonparty an impermissible interest in a suit, impedes the settlement of the underlying case, and promotes speculation in lawsuits). Thus, the court held that the advances made to the victim were void as champertous because the corporations sought to profit from the victims case. Id. at 220-21.

Similarly, other courts have declined to abolish the champerty doctrine. See, e.g., Fleetwood Area School Dist. v. Berks County Bd. of Assessment Appeals, 821 A.2d 1268, 1273 (Pa.Cmwlth.2003) (stating that doctrine of champerty continues to be viable in Pennsylvania and can be raised as a defense); Lingel v. Olbin, 198 Ariz. 249, 8 P.3d 1163, 1167-68 (2000) (stating that personal injury and wrongful death claims are not assignable because of the increased risk of promoting maintenance and champerty). These courts recognize the potential ill effects that a champertous agreement can have on the legal system. Although there are safeguards in place to alleviate the potential evils associated with champertous agreements, respondent fails to provide a compelling reason to completely abandon the doctrine. As an error correcting court, we do not presume to abandon the champerty doctrine simply because a few states have chosen to do so.

II.

Next, appellant argues' that the district court lacked jurisdiction over the use or disposition of monies that may be disbursed by a federally recognized tribe to its member. Subject matter jurisdiction is a question of law, which this court reviews de novo. Shaw v. Bd. of Regents of Univ. of Minn., 594 N.W.2d 187, 190 (Minn.App.1999), review denied (Minn. July 28, 1999).

Public Law 280, codified at 18 U.S.C. 1162 and 28 U.S.C. 1360, grants jurisdiction to many states over certain civil matters. Duluth Lumber Plywood Co. v. Delta Dev., Inc., 281 N.W.2d 377, 380 (Minn.1979). State courts generally have full jurisdiction over common-law disputes such as torts or contracts involving Native Americans. Id. at 381. However, state jurisdictions must not interfere with Native American self-government, absent some compelling state interest. Id.

In Duluth Lumber, the question before the supreme court was whether a Minnesota court would adversely affect the Chippewa Tribes self government by assuming jurisdiction over a civil dispute involving monies disbursed by the Fon du Lac Housing Authority. 281 N.W.2d at 382. The supreme court stated that Minnesota courts may generally assume jurisdiction over disputes arising from commercial transactions between Native Americans and non-Native Americans if the transaction is not confined to the reservation. Id. Because state jurisdiction did not interfere with the right of the Native Americans on the Fond du Lac Reservation to make their own laws and be ruled by them, the court held that the Fond du Lac Housing Authority was deemed to have submitted itself to the jurisdiction of non-Native American institutions for the purpose of construing and enforcing the agreement between the United States and a private developer. See id. at 383 (holding that the construction and application of the agreement were at stake and not the governmental functions, laws, or customs of the tribe). Thus, the supreme court held that jurisdiction in a Minnesota state court was proper. Id.

Here, the seven percent agreement concerns a transaction that occurred entirely off the reservation involving two non-tribal members. Although M.W. is now a tribal member, she and her mother live and conduct their affairs off the reservation and within the jurisdiction of the Minnesota court system. There is nothing to suggest that jurisdiction by Minnesota courts over the assignment of M.W.s tribal per capita distributions would interfere with or infringe on the tribes self-government, government functions, laws, or customs. Jurisdiction in this matter was proper.

III.

In October 1998, respondent was the target of an involuntary bankruptcy petition in the Northern District of Iowa Bankruptcy Court. Appellant asserts that as part of the bankruptcy proceeding, respondent was required to list all of his known assets. Appellant argues that because respondent did not claim the assignment agreements as assets in the bankruptcy proceeding, he is judicially es-topped from bringing claims based on the assignment agreements.

Judicial estoppel prevents a party from contradicting previous declarations made during the same or later proceedings if the change in position would adversely affect the proceeding or constitute a fraud on the court. Bauer v. Blackduck Ambulance Assn., 614 N.W.2d 747, 749 (Minn.App.2000). But it is an open question whether the doctrine of judicial estoppel even exists in Minnesota. See State v. Larson, 605 N.W.2d 706, 713 n. 11 (Minn.2000) (refusing to expressly recognize the theory of judicial estoppel); see also State v. Profit, 591 N.W.2d 451, 462 (Minn.1999); Illinois Farmers Ins. Co. v. Glass Service Co., Inc., 669 N.W.2d 420, 426 (Minn.App.2003). Under these facts, we decline to recognize the theory here.

IV.

Finally, respondent claims that certain documents in appellant’s appendix are outside the district court record and should be stricken. “An appellate court may not base its decision on matters outside the record on appeal, and may not consider matters not produced and received in evidence below.” Thiele, 425 N.W.2d at 582-83. Because these documents are outside the district court record, they are stricken.

DECISION

The Note is a valid agreement between the parties, and therefore respondent is entitled to full payment on the Note. The assignment agreements, under which respondent financed appellant’s legal action in exchange for a percentage of the proceeds if the action were successful, however, are champertous, and void as against public policy.

Affirmed in part and reversed in part.

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

      . M.W.'s biological father is a member of the tribe.

      . Appellant argues that respondent's acceptance of $38,976.22 that had been held in her attorney’s trust account, as payment from her settlement proceeds in the litigation, constitutes an accord and satisfaction of respondent’s interest in her litigation. But there is no evidence in the record that appellant tendered this amount to respondent in full satisfaction of the claims, nor is there any evidence in the record of a written communication from appellant to respondent containing "a conspicuous statement” that the $38,976.22 was tendered in full satisfaction of the debt. See Webb Bus. Promotions, Inc. v. Am. Elecs. & Entm’t Corp., 617 N.W.2d 67, 73 (Minn.2000) (listing elements that are generally required to establish the defense of accord and satisfaction). The district court did not err by rejecting appellant's claim that accord and satisfaction discharged any of appellant's legal obligations.

      .Although we conclude that the seven percent agreement was invalid under the doctrine of champerty and maintenance, we also note that, appellant had no legal right to assign to respondent seven percent of the proceeds M.W. would receive upon her enrollment with the tribe. See In re Wretlind, 225 Minn. 554, 563, 32 N.W.2d 161, 167 (1948) (stating that where there is conflicting interest between a minor and person representing her, the person whose interest is adverse to the minor’s interest should not be appointed guardian ad litem, or permitted to act as the next friend of the minor).

      .The courts in Saladini and Osprey cited the rules against bringing frivolous lawsuits and excessive attorney fees as devices that more effectively guard against the evils the cham-perty doctrine sought to protect against. Saladini, 687 N.E.2d at 1227; Osprey, 532 S.E.2d at 277.


text:
    AGRA RESOURCES COOP d/b/a Exol, Relator, v. FREEBORN COUNTY BOARD Of COMMISSIONERS, Respondent.
    No. A03-1440.
    Court of Appeals of Minnesota.
    July 13, 2004.

      Arvid Wendland, Wendland Timmer-man, Blue Earth, MN, for relator.
    Craig S. Nelson, Freeborn County Attorney, Albert Lea, MN, for respondent.
    Considered and decided by HARTEN, Presiding Judge; HALBROOKS, Judge; and MINGE, Judge.
   OPINION

MINGE, Judge.

On appeal from the county’s imposition of a volume-based fee as a basis for discharges into a ditch, relator argues that Chapter 103E of the Minnesota Statutes regarding ditches does not authorize a volume-based user fee. Respondent county board argues that it lacked the jurisdiction to grant the outlet for industrial wastewa-ter and that its order should be vacated. Because we conclude that a county board, as a ditch authority, may accept the drainage of clean industrial wastewater, and because the statute allows a county board to assess fees as they relate to benefits and maintenance, we affirm.

FACTS

Relator Agra Resources Coop (Exol) is the owner of an industrial plant approximately five miles from Albert Lea, in rural Freeborn County, that produces ethanol from corn. This process produces approximately 250,000 gallons of industrial waste-water per day. The industrial wastewater is originally drawn from a well, is used for non-contact cooling, and is clean. The plant is connected with Albert Lea’s waste-water-treatment facility. Although this cooling water has been included with other discharges from the plant, the Minnesota Pollution Control Agency (MPCA) has determined that Albert Lea may no longer accept Exol cooling water that does not require treatment as discharge to its wastewater facility.

In November 2002, Exol submitted a petition to respondent Freeborn County Board of Commissioners (Board), as the drainage authority for County Ditch No. 16 (CD 16), seeking approval for a private drain tile outlet connecting to Lateral 1-A for the discharge of its non-contact industrial cooling water. Lateral 1-A is an underground drain tile that was initially constructed to benefit lands owned by Exol beyond the plant site and to benefit the lands of others. Although a subsurface line, Lateral 1-A was designed to accept the drainage of surface waters. The benefited land, which did not include the plant site, had previously been assessed for the cost of CD 16 and Lateral 1-A.

In response to Exol’s petition, the Board appointed an engineer and viewers and ordered survey reports. While subsequently expressing concern about overloading the drainage system, the March 2003 engineer’s report nonetheless recommended that Exol be allowed to discharge its cooling water at a rate of 250,000 gallons per day. The June 2003 viewers’ report recommended an outlet fee and determined the amount of drainage benefit to Exol. Additionally, the viewers recommended that the Board establish a user fee in the amount of three one-hundredths of a dollar (.03 dollars) per 100 gallons discharged, to be metered every six months and billed twice a year. The viewers subsequently amended their report, reducing the user fee to two one-hundredths of a dollar (.02 dollars) per 100 gallons discharged. The Board considered and adopted the amended viewers’ report at a county board meeting. The Board subsequently issued its final order and findings of fact with the provision that the user fees would be reviewed after two years.

Exol appealed and this court issued a writ of certiorari on September 30, 2003. Exol challenges the user fees in the final Board order pursuant to Minn.Stat. § 103E.401, subds. 2, 3 (2002), alleging that the Board’s imposition of a user fee is beyond its authority. For the first time on appeal, the Board, as respondent, asserts it had no jurisdiction or authority to accept Exol’s private wastewater into the county ditch system and that its action in accepting Exol’s petition was improper.

ISSUES

1. Does a county board, acting as a drainage authority, have authority to allow the use of a ditch for the discharge of industrial wastewater?

2. Is the assessment of a per-gallon user fee beyond the authority of a county board when, acting as a drainage authority, the county board assesses the benefits in providing a drainage outlet to an existing ditch?

ANALYSIS

I.

The first question we address is whether the Board, acting as a drainage authority, has authority to allow the use of a ditch for the discharge of industrial wastewater. At the outset, we note the unusual posture of this case. The Board took action that it now claims was beyond its jurisdiction. With respect to this issue, the Board has not filed any notice of review of its own decision, and there is no indication that Exol was notified of this claim except by service of the Board’s brief.

Raising new issues on appeal is often not permitted, and this court may disregard such issues, claims and arguments. See Thiele v. Stich, 425 N.W.2d 580, 582-83 (Minn.1988). However, in the interest of bringing closure to this matter, we will exercise our discretion and address the question of the Board’s authority. See Putz v. Putz, 645 N.W.2d 343, 350 (Minn.2002) (stating that, pursuant to Minn. R. Civ.App. P. 103.04, an appellate court may review any matter as the interest of justice may require).

Authority over a drainage system is granted to the board of county commissioners where the drainage system or project is located. See Minn.Stat. § 103E.005, subds. 5, 9 (2002); In re Matter of Comm’rs Order Denying Permit Application 93-1024, 527 N.W.2d 173, 175 (Minn.App.1995) (“State law also grants ‘drainage authorities’ substantial power to regulate ‘drainage’ on a local level.”), review denied (Minn. April 27, 1995). “Minnesota’s laws pertaining to drainage ditches are a complex matrix adopted with the intent of reclaiming agricultural land by disposing of excess water that renders the land untillable and fairly allocating the costs among benefited landowners.” In re Improvement of Murray County Ditch No. 34, 615 N.W.2d 40, 45 (Minn.2000) (citation omitted). Minnesota drainage laws must be liberally construed. Id. At the same time, drainage authorities and counties are entities that have been created by the state and have only such powers expressly granted to them and necessary to carry out their statutory functions. Kasch v. Clearwater County, 289 N.W.2d 148, 151-52 (Minn.1980). The Board raises jurisdictional and statutory interpretation claims, which are questions of law we review de novo. Harms v. Oak Meadows, 619 N.W.2d 201, 202 (Minn.2000) (jurisdiction); In re Improvement of Murray County Ditch No. 34, 615 N.W.2d at 45 (statutory interpretation).

Generally, a drainage authority is authorized to make orders regarding the construction and maintenance of drainage systems. Minn.Stat. § 103E.011, subd. 1(1) (2002). “A person seeking authority to use an established drainage system as an outlet must petition the drainage authority.” Minn.Stat. § 103E.401, subd. 3. Once final hearing notice is given, the drainage authority has jurisdiction over the property and persons detailed and described in the survey and viewers’ reports. Minn.Stat. § 103E.331 (2002).

The Board argues that it lacked jurisdiction over the outlet petition because it ultimately lacks the authority to authorize the drainage of industrial wastewater that originally comes from underground sources. The Board contends that the statute only gives it authority over the drainage of surface waters such as storm and agricultural run-off.

The statutes are silent on the Board’s authority to accept clean industrial water into a drainage ditch. There is no language in the drainage statutes that limits the Board’s authority to only allow surface waters into ditch systems. In fact, subsurface tile systems are commonplace in farmlands. These systems collect both surface and subsurface waters and discharge into ditches.

Municipalities are specifically authorized to use drainage ditches as outlets for municipal drainage systems or the overflow from such systems. Minn.Stat. § 103E.411, subd. 1 (2002). That such drainage includes effluent from municipal wastewater-treatment plants has been recognized. See Op. Att’y Gen. 602h, (Feb. 18, 1936) (advising a county board of its authority to authorize the use of a drainage ditch for treated waters from a sewage disposal plant).

Although attorney general opinions interpreting the law are not binding on the courts, they are helpful and entitled to careful consideration. State v. Ross, 472 N.W.2d 185, 186 (Minn.App.1991). In this context, we note that there is an attorney general’s opinion considering whether an agricultural soybean processing cooperative located within a municipality could discharge clean cooling water into an existing judicial ditch. See Op. Att’y Gen. 602 (Mar. 20, 1951). The assistant attorney general recognized the sensitivity of the issue and determined that the ditch authority should not accept the cooperative’s petition, but that the cooperative could discharge the water into the municipal wastewater system in the municipality where the plant was located. Id. The municipality could then discharge the water into the judicial ditch. Id. Other opinions have found that ditches can be used as outlets for private septic systems and for a creamery. See Op. Att’y Gen. 602-H (Mar. 26, 1958) (addressing private septic systems); Op. Att’y Gen. 602h (Feb. 18, 1936) (recognizing past decisions involving a creamery). It appears from these attorney general opinions that private wastewa-ter connections to drainage ditches have been permitted in rural areas in this state. However, there is also clear recognition that the user of the ditch or the land benefited by the outlet must pay an assessment for that benefit. See Op. Att’y Gen. 602-H (Mar. 26, 1958); Op. Att’y Gen. 602h (Feb. 18, 1936).

Here, Exol petitioned the Board for access to an established drainage ditch system as an outlet pursuant to Minn.Stat. § 103E.401, subds 2, 3. The request was referred to the drainage engineer and viewers, they completed their reports, and after giving notice of a final hearing, the county held a hearing on the matter. The statutes do give the Board general jurisdiction and authority over subjects covered in such reports. See Minn.Stat. § 103E.331. Clearly the subject of this Exol drainage petition was the subject of the report. Admittedly, the use of this statute' as a source of authority has a bootstrap dimension to it and has the potential to be abused by a county. However, because there is no reason to categorically prohibit the county board from considering this type of petition, because use of outlets for industrial drainage has historically been approved, and because counties have certain flexibility in determining the design and use of drainage systems, we determine that the Board in this case had jurisdiction to consider and act on Exol’s petition.

II.

Having determined that the Board had jurisdiction to accept Exol’s outlet petition for the drainage of industrial wastewater, we next consider the authority of the Board to assess Exol with a user fee of .02 cents per 100 gallons of wastewater discharged. Exol alleges that such a fee is beyond the Board’s authority under the drainage statute. Whether the drainage statute authorizes the Board to assess a user fee is a question of statutory interpretation, which we review de novo. See In re Improvement of Murray County Ditch No. 34, 615 N.W.2d at 45.

At the outset, we note that the drainage statute provides some structure in determining costs and benefits to land owners as a result of drainage systems. The language of the statute addressing the use of an existing drainage system as an outlet provides that “[a] private drainage system may not be constructed to use the established drainage system as an outlet until the outlet fee, set by order, is paid by the petitioner to the county treasurer where the petitioner’s property is located.” MinmStat. § 103E.401, subd. 5 (2002). The outlet provisions of the drainage statute further provide that a final order must state the amount of benefit to the property as the result of the outlet and state that the “property benefited is liable for assessments levied after [the time of the final order].” Minn.Stat. § 103E.401, subd. 4 (2002). Although not exactly the present situation, we note that Minn.Stat. § 103E.315, subd. 6(a) (2002), provides:

If the proposed drainage project furnishes an outlet to an existing drainage system and benefits the ' property drained by the existing- system, the viewers shall equitably determine and assess:
(1) the benefits of the proposed drainage project to each tract or lot drained by the existing drainage system;
(2) a single amount as an outlet benefit to the existing drainage system; or
(3) benefits on a watershed acre basis.

Here, Exol had a drainage arrangement in existence which it proposes to replace with the outlet to Lateral 1-A of CD 16.

The Board took painstaking measures to assess the cost to the ditch system and the benefits to Exol' as a result of the proposed outlet. The Board appointed an engineer and viewers to make assessments. The Board went through lengthy calculations based on the assessment that Exol would discharge 250,000 gallons of industrial wastewater per day. Such a discharge will result in a constant flow of industrial wastewater in the ditch system that will not significantly fluctuate based on. rainfall, as does agricultural runoff. The amount of water entering the system is undisputed and predictable. Accordingly, the Board’s detailed calculations produced a reasonable conclusion. There is obviously a benefit to Exol to be able to move this water. By looking at the volume of the water and the surface area drainage equivalent, the Board used a traditional drainage perspective in determining a benefit dimension and. calculating a user fee. We cannot say that the Board’s user fee of .02 cents per 100 gallons discharged was arbitrary or capricious. See State ex rel. Great Northern Ry. Co. v. Dist. Court of Sixteenth Judicial Dist., 227 Minn. 482, 486-87, 36 N.W.2d 336, 339 (1949) (rejecting claims of arbitrariness and capriciousness, and upholding a method of determining benefits where the record indicated a thorough assessment).

Nor can we say that the assessment was beyond the Board’s authority. As we note previously in this opinion, the statute provides the Board, ás a drainage authority, some flexibility to make determinations regarding the use of its ditch and drainage systems. We note that this approach of limited flexibility is not uncommon to regulatory authorities. See, e.g., In re Qwest’s Wholesale Serv. Quality Standards, 678 N.W.2d 58 (Minn.App.2004). We also note that, as with the Board’s authority to allow drainage of industrial wastewater, the Board’s authority to assess fees is also not without limits. See MinmStat. § 103E.601 (2002); In re Redetermination of Benefits of Nicollet County Ditch 86A, 488 N.W.2d 482, 485-86 (Minn.App.1992) (finding the board’s adoption of assessment violated statutory and constitutional guidelines because the assessed benefits were not proportional to actual benefits and failed to consider actual benefits). Here, we conclude that the complexities of the drainage system and its use provide the Board, as drainage authority, with implied authority to assess such fees.

DECISION

Because the drainage statute allows the Freeborn County Board, as a drainage authority, jurisdiction to make decisions regarding the drainage of subsurface industrial wastewater and authority to assess reasonable volume-based user fees where the quantity of water drained is predictable, we affirm.

Affirmed.

      . The parties do not raise, and we do not sua sponte raise or address environmental issues that may arise from use of a ditch system as an outlet for industrial wastes. Certainly the Board has the discretion and responsibility to consider such matters. Furthermore, the Board’s ability to use the drainage system is not without limitation. See, e.g., Minn.Stat. §§ 84.01-.99 (Department of Natural Resources), 103A.001-.43 (Water Policy and Information), 103D.011-.925 (Watershed Districts), 116C.01-.08 (Environmental Quality Board), 116D.01-.il (Environmental Policy) (2002 & Supp.2003). We also note that this petition was the result of a directive from the MPCA to the city of Albert Lea that it stop accepting this discharge of clean water by Exol into the Albert Lea sanitary sewer system.

      . We address only the benefits analysis as it pertains to Exol. We recognize that this large industrial discharge may affect the capacity of the ditch to handle large surface water runoff occasioned by natural causes and that the temperature of the Exol runoff may create yet other maintenance and environmental problems. We acknowledge that acceptance by the county of these problems constitutes a benefit to Exol.