text:
    2006 ND 220
    Jason HASPER, Plaintiff and Appellant, v. CENTER MUTUAL INSURANCE COMPANY, Defendant and Appellee.
    No. 20050316.
    Supreme Court of North Dakota.
    Oct. 23, 2006.

      David S. Maring (argued) and Anthony J. Weiler (on brief), Maring Williams Law Office, Bismarck, N.D., for plaintiff and appellant.
    Steven A. Storslee, Storslee Law Firm, P.C., Bismarck, N.D., for defendant and appellee.
   KAPSNER, Justice.

[¶ 1] Jason Hasper has appealed from a judgment dismissing his claim for under-insured motorist (“UIM”) benefits against Center Mutual Insurance Company (“Center Mutual”). We reverse and remand for further proceedings, concluding that a UIM insurer which seeks to deny coverage based upon the insured’s failure to notify the insurer of a proposed settlement with the tortfeasor must demonstrate that it suffered actual prejudice resulting from the lack of notice.

I

[¶2] In November 2000, Hasper was injured in an automobile accident in South Dakota while riding as a passenger in a vehicle driven by his cousin, Chris Goehr-ing. The vehicle was insured by a policy from Allied Insurance issued to Goehring’s parents, Larry and Susan Goehring. Allied’s claim representative contacted Has-per and advised him that the Goehrings’ policy carried a limit of $100,000. On January 17, 2001, Hasper received the $100,000 policy limits from Allied and executed a release discharging Larry and Susan Goehring, “and all other persons for whose fault the Released Party is or is claimed to be liable,” from all claims arising out of the accident.

[¶ 3] At the time of the accident, Has-per was a resident of his parents’ household and his parents had an automobile insurance policy from Center Mutual which provided UIM coverage and personal injury protection (“PIP”) coverage. Hasper did not contact or provide any notice to Center Mutual prior to signing the release and accepting the $100,000 from Allied. In April 2001, Hasper’s attorney sent a letter to Center Mutual indicating Hasper would be making a claim for UIM benefits and stating that Hasper “intends to sign a release releasing the other driver, Chris Goehring,” unless Center Mutual preserved its subrogation claim against Goehring by substituting its own check for $100,000 to Hasper. Center Mutual declined to substitute its check, stating that it was aware Hasper had previously signed a release and accepted the policy limits from Allied.

[¶ 4] In May 2002, Hasper sued Center Mutual seeking to recover UIM and PIP benefits. On cross-motions for summary judgment on the UIM claim, the district court determined that Hasper’s failure to give prior notice of the settlement to Center Mutual prohibited him from now seeking UIM benefits. An order dismissing the UIM claim was entered, and the PIP claim went to trial. In July 2005, judgment was entered awarding Hasper damages against Center Mutual upon his PIP claim. Hasper appealed, alleging the district court erred in granting partial summary judgment dismissing his UIM claim against Center Mutual.

II

[¶ 5] Summary judgment is a procedural device for the prompt resolution of a controversy on the merits without a trial if there are no genuine issues of material fact or inferences that can reasonably be drawn from undisputed facts, or if the only issues to be resolved are questions of law. State ex rel. North Dakota Hous. Fin. Agency v. Center Mut. Ins. Co., 2006 ND 175, ¶ 8, 720 N.W.2d 425; Farmers Ins. Exch. v. Schirado, 2006 ND 141, ¶ 8, 717 N.W.2d 576. A party moving for summary judgment has the burden of showing there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Witzke v. City of Bismarck, 2006 ND 160, ¶ 7, 718 N.W.2d 586; Schirado, at ¶ 8. In determining whether summary judgment was appropriately granted, we must view the evidence in the light most favorable to the party opposing the motion, and that party will be given the benefit of all favorable inferences which can reasonably be drawn from the record. Witzke, at ¶ 7; Schirado, at ¶ 9. On appeal, this Court decides whether the information available to the district court precluded the existence of a genuine issue of material fact and entitled the moving party to judgment as a matter of law. Schirado, at ¶ 9. Whether the district court properly granted summary judgment is a question of law which we review de novo on the entire record. Center Mutual, at ¶ 8; Witzke, at ¶ 7.

Ill

[¶ 6] The dispositive issue on appeal is whether Hasper’s failure to provide prior notice to Center Mutual of the settlement with the Goehrings precludes him from collecting UIM benefits from Center Mutual.

A

[¶ 7] In North Dakota, UIM coverage is essentially a function of statute. Score v. American Family Mut. Ins. Co., 538 N.W.2d 206, 209-10 (N.D.1995). Under N.D.C.C. § 26.1-40-15.3(1), an insurer must provide UIM coverage at limits equal to the uninsured motorist coverage, and the UIM coverage must pay compensatory damages which the insured would be legally entitled to collect from the owner or operator of the underinsured vehicle. A UIM insured who wishes to settle with the underinsured tortfeasor generally must give written notice of the proposed settlement to the UIM insurer, and coverage may be excluded if the insured fails to give notice:

The uninsured and underinsured coverages provided for in sections 26.1-40-15.1 through 26.1-40-15.7 do not apply to bodily injury, sickness, disease, or death resulting therefrom of an insured:
7. When the insured, without the written consent of the insurer, shall make any agreement or settlement with any person who may be legally liable therefor, if such agreement adversely affects the rights of the insurer. The insurer is not bound by any agreement or settlement without its prior knowledge and consent. This limitation does not apply to underinsured motorist coverage when the insured has advised the insurer, in compliance with subsection 2 of section 26.1-40-15.5, and the insurer has failed to advance the required payment to protect its right of reimbursement and subro-gation.

N.D.C.C. § 26.1-40-15.6(7); see Sandberg v. American Family Ins. Co., 2006 ND 198, ¶ 10, 722 N.W.2d 359. Upon receipt of notice of a proposed settlement, the UIM insurer must substitute its own funds for the proposed settlement to preserve its subrogation rights against the underin-sured tortfeasor:

No insurer providing underinsured motorist coverage has a right of subrogation against an underinsured motorist if the insurer has been provided with a written notice in advance of an agreement, settlement, or judgment between its insured and the underinsured motorist, and the insurer fails to advance a payment to the insured in an amount equal to the tentative agreement or settlement within thirty days following receipt of such notice. An insurer advancing such payment has full rights of subrogation.

N.D.C.C. § 26.1-40-16.5(2).

[¶ 8] The language of the UIM endorsement to the Haspers’ policy from Center Mutual essentially corresponds to the statutory provisions. Section A(2) of the endorsement provides for UIM coverage if the policy limits of the underinsured motorist have been exhausted by judgments or payments, or if Center Mutual has advanced funds to substitute for a proposed settlement. Section E(2)(c) of the endorsement creates the duty of the insured to notify Center Mutual of a proposed settlement:

A person seeking Underinsured Motorists Coverage must also promptly notify us in writing of a tentative settlement between the “insured” and the insurer of the “underinsured motor vehicle” and allow us 30 days to advance payment to that “insured” in an amount equal to the tentative settlement to preserve our rights against the insurer, owner or operator of such “underinsured motor vehicle”.

[¶ 9] Under North Dakota law and these policy provisions, the insured should promptly notify the UIM carrier if a tentative settlement has been reached with the tortfeasor and the tortfeasor’s insurer. The UIM insurer then has thirty days to investigate and determine whether there is a reasonable possibility of collecting more than the policy limits from the underin-sured tortfeasor. The insurer then may decide whether to substitute its check in an amount equal to the proposed settlement to its insured and preserve its subro-gation rights.

B

[¶ 10] The crucial question presented in this case is whether Hasper’s acceptance of the settlement and release of the Goehrings without providing prior notice to Center Mutual “adversely affects the rights of the insurer.” N.D.C.C. § 26.1-40-15.6(7). The district court concluded Center Mutual’s rights were adversely affected because Center Mutual could have sought a judgment against Chris Goehring which may have been collectable in the future. In essence, the court held that failure to provide prior notice of a settlement will always, as a matter of law, adversely affect the UIM insurer because it will have lost its right to pursue a subrogation claim which theoretically might be collectable some time in the future. The district court thereby effectively read the requirement of an adverse effect out of the statute because, under the court’s rationale, there will always be a loss of subro-gation rights and a corresponding adverse effect.

[¶ 11] The vast majority of courts considering similar notice-of-settlement or consent-to-settle clauses have held that the insurer has the burden of establishing that an unauthorized settlement had an actual adverse effect on the insurer’s interests. See, e.g., Shelter Mut. Ins. Co. v. Bough, 310 Ark. 21, 834 S.W.2d 637, 640 (1992) (insurer failed to show insured’s unauthorized settlement with tortfeasor and tort-feasor’s insurance carrier prejudiced its right of subrogation or possible recovery from tortfeasor or any other potentially liable party); Taylor v. Government Employees Ins. Co., 90 Hawaii 302, 978 P.2d 740, 749 (Haw.1999) (legitimate invocation of consent-to-settle provision requires insurer to demonstrate prejudice from insured’s failure to obtain insurer’s consent before settling with tortfeasor); Bantz v. Bongard, 124 Idaho 780, 864 P.2d 618, 624 (Idaho 1993) (consent-to-settle clause should not be enforced to work forfeiture of coverage unless insurer can show actual prejudice from settlement); Hoel v. Crum & Forster Ins. Co., 51 Ill.App.3d 624, 9 Ill.Dec. 390, 366 N.E.2d 901, 905 (1977) (insurer must demonstrate it was actually hampered or substantially prejudiced by settlement); Kapadia v. Preferred Risk Mut. Ins. Co., 418 N.W.2d 848, 852 (Iowa 1988) (insurer must demonstrate actual prejudice by showing it could have collected from tortfeasor under subrogation clause); Greenvall v. Maine Mut. Fire Ins. Co., 1998 ME 204, ¶ 11, 715 A.2d 949 (insurer must demonstrate prejudice from insured’s failure to obtain insurer’s consent to settlement); MacInnis v. Aetna Life & Cas. Co., 403 Mass. 220, 526 N.E.2d 1255, 1258 (Mass.1988) (insurer must prove material prejudice resulting from insured’s unauthorized settlement); Sorensen v. Farmers Ins. Exch., 279 Mont. 291, 927 P.2d 1002, 1005 (1996) (insured not barred from collecting on policy if insurer is unable to demonstrate prejudice); Silvers v. Horace Mann Ins. Co., 324 N.C. 289, 378 S.E.2d 21, 27-28 (1989) (insurer bears burden of proving it was materially prejudiced by insured’s unauthorized settlement); Hernandez v. Gulf Group Lloyds, 875 S.W.2d 691, 692-93 (Tex.1994) (eonsent-to-settlement exclusion unenforceable absent showing of prejudice by insurer); State Farm Mut. Auto. Ins. Co. v. Green, 2003 UT 48, ¶ 32, 89 P.3d 97 (requiring insurer to show actual prejudice strikes appropriate balance between protecting insurer’s interest and avoiding forfeiture when insurer was not harmed); Kronjaeger v. Buckeye Union Ins. Co., 200 W.Va. 570, 490 S.E.2d 657, 669 (1997) (to justify refusal to pay underinsured benefits, insurer must show prejudice from insured’s unauthorized settlement); see also 9 Lee R. Russ & Thomas F. Segalla, Couch on Insurance § 124.8 (3d ed.2005); 3 Alan I. Widiss & Jeffrey E. Thomas, Uninsured and Underinsured Motorist Insurance § 43.5 (3d ed.2005); cf. American Family Mut. Ins. Co. v. Baumann, 459 N.W.2d 923, 927 (Minn.1990) (unauthorized settlement raises a presumption of prejudice and insured bears the bui'den of showing the absence of prejudice); Ferrando v. Auto-Owners Mut. Ins. Co., 98 Ohio St.3d 186, 781 N.E.2d 927, 946-47 (Ohio 2002) (insured’s breach of a consent-to-settle clause raises a presumption of prejudice to the insurer, and the insured bears the burden of presenting evidence rebutting the presumption); Ranes v. American Family Mut. Ins. Co., 219 Wis.2d 49, 580 N.W.2d 197, 202 (Wis.1998) (a presumption of prejudice arises from an insured’s failure to provide notice of settlement, and the insured bears the burden of rebutting the presumption). Contra Lee v. Auto-Owners Ins. Co., 218 Mich.App. 672, 554 N.W.2d 610, 612 (1996) (no need for insurer to prove actual prejudice from insured’s unauthorized settlement with tortfeasor); Stevens v. Merchants Mut. Ins. Co., 135 N.H. 26, 599 A.2d 490, 492-93 (1991) (enforcement of a consent-to-settle clause is not dependent on a showing of prejudice to the insurer); Frey v. Independence Fire & Cas. Co., 698 P.2d 17, 22 (Okla.1985) (insured’s settlement with tortfeasor ended insurer’s subrogation rights, and insurer had a “complete defense” to recovery against it); Manzo v. AMICA Mut. Ins. Co., 666 A.2d 417 (R.I.1995) (insurer need not show it was prejudiced by insured’s failure to obtain consent to settlement).

[¶ 12] The cases following the majority stance make it clear the insurer must show more than the mere fact that the settlement abrogated its subrogation rights against the tortfeasor. See Bantz, 864 P.2d at 623-24; Kapadia, 418 N.W.2d at 852; Green, 2003 UT 48, ¶ 33, 89 P.3d 97. The insurer must demonstrate an “actual, rather than theoretical, impairment of [its] ability to recover through subrogation,” and UIM coverage should not be denied “on the basis of a merely technical breach that has no effect on the insurer’s ability to recover through subrogation.” Green, at ¶ 31. Because the purpose of consent-to-settle clauses “is almost exclusively to protect the insurer’s subrogation rights against the party released,” such clauses should not be enforced to deny the UIM claim “[w]hen the insurer’s subrogation rights are unaffected by the settlement.” Greenvall, 1998 ME 204, ¶ 10, 715 A.2d 949 (quoting Bazinet v. Concord Gen. Mut. Ins. Co., 513 A.2d 279, 282 (Me.1986)). As explained in 3 Widiss, supra, § 43.5, at 558-59, “[t]he loss of an insurer’s subrogation right may not be significant,” because “[i]n many instances, pursuit of any recovery from an insured tortfeasor beyond the available liability insurance would be fruitless.” See also Kapadia, at 852 (quoting Bailey v. State Farm Fire & Cas. Ins. Co., 621 F.Supp. 1016, 1018 (S.D.Miss.1985)) (depending upon the tortfeasor’s financial situation, an insurer’s subrogation rights may be “of little, if any, value”). If the consent-to-settle clause is enforced without a showing of actual prejudice, it results in a forfeiture of the UIM coverage and “would produce an undeserved windfall to the insurance company while depriving an otherwise deserving insured person of recovery.” Bantz, at 624. Requiring the insurer to demonstrate actual prejudice “strikes an appropriate balance between protecting an insurer’s interests and avoiding forfeiture of coverage when an insurer has not been harmed.” Green, at ¶ 32. The law abhors a forfeiture. Keller v. Bolding, 2004 ND 80, ¶ 18, 678 N.W.2d 578; Johnson v. Gray, 265 N.W.2d 861, 864 (N.D.1978).

[¶ 13] The rationale of these cases is in accord with this Court’s holding in Finstad v. Steiger Tractor, Inc., 301 N.W.2d 392 (N.D.1981). In Finstad, at 398, the Court concluded an insurer seeking to avoid coverage based upon the insured’s failure to provide timely notice of the claim, as outlined in the policy provisions, was required to demonstrate the likelihood of appreciable prejudice resulting from the lack of notice. Stressing that allowing the insurer to avoid coverage without a showing of prejudice would work a forfeiture, this Court quoted with approval the “well-reasoned” rationale of the Supreme Court of New Jersey in an earlier case:

“[Although the policy may speak of the notice provision in terms of ‘condition precedent,’ ... nonetheless what is involved is a forfeiture, for the carrier seeks, on account of a breach of that provision, to deny the insured the very thing paid for. This is not to belittle the need for notice of an accident, but rather to put the subject in perspective. Thus viewed, it becomes unreasonable to read the provision unrealistically or to find that the carrier may forfeit the coverage, even though there is no likelihood that it was prejudiced by the breach. To do so would be unfair to insureds.
“The insurance contract not being a truly consensual arrangement and being available only on a take-it-or-leave-it basis and the subject being in essence a matter of forfeiture, we think it appropriate to hold that the carrier may not forfeit the bargained-for protection unless there are both a breach of the notice provision and a likelihood of appreciable prejudice. The burden of persuasion is the carrier’s.”

Finstad, 301 N.W.2d at 397-98 (quoting Cooper v. Government Employees Ins. Co., 51 N.J. 86, 237 A.2d 870, 873-74 (1968)).

[¶ 14] Several reasons have been expressed for placing the burden of proving actual prejudice on the insurer:

There are several rationales for this approach. First, the insurer is in the best position both to assess whether it has been prejudiced and to then produce evidence for the court that is relevant to an adjudication. Second, in effect, it recognizes the difficulty of requiring a claimant to attempt to prove the “negative fact” that the insurer was not prejudiced. Finally, if no clear proof is available, such an allocation serves to avoid a forfeiture of coverage.

3 Widiss, supra, § 43.5, at 564; see also Sorensen, 927 P.2d at 1005 (quoting Widiss and concluding the rule “places the burden on the insurer which has collected premiums, rather than on an injured claimant, to show that the insurer’s subrogation claim has potential value”); Silvers, 378 S.E.2d at 28 (quoting Great Am. Ins. Co. v. C.G. Tate Constr. Co., 303 N.C. 387, 279 S.E.2d 769, 775-76 (1981)) (the burden is upon the insurer “because it is seeking to escape ... the very thing which it is paid to do,” “the insurer is in a much better position than the insured to know what factors are relevant to its posture regarding settlement and to recognize prejudice,” and requiring the insured to show an absence of prejudice would force him to prove a negative).

[¶ 15] The nature of the showing required of the insurer and the factors relevant to the determination of actual prejudice have been summarized in Green, 2003 UT 48, ¶ 33, 89 P.3d 97:

In order to show actual prejudice, it is not sufficient for an insurer to show that its right of subrogation has been extinguished. Rather, the insurer may deny coverage only if it would have had a realistic possibility of recovering from the tortfeasor had its subrogation right not been foreclosed by the insured’s settlement with the tortfeasor. This requires an assessment of factors such as the assets held by the tortfeasor, the strength of the insurer’s subrogation claim (i.e., the strength of the underlying tort claim), the expenses and risks of litigating the insured’s cause of action, and the extent of the victim’s damage.

See also Taylor, 978 P.2d at 749 (quoting Gibson v. State Farm Mut. Auto. Ins. Co., 123 Ohio App.3d 216, 704 N.E.2d 1, 6 (Ohio Ct.App.1997)) (relevant factors include “the amount of assets held by the tortfeasor, the likelihood of recovery via subrogation, and the expenses and risks of litigating the insured’s cause of action”); Kapadia, 418 N.W.2d at 852 (the insurer must establish that, absent the settlement, “it could have collected from the tort-fea-sor” through subrogation); MacInnis, 526 N.E.2d at 1261 and n. 16 (relevant factors include the amount of the tortfeasor’s assets, the likelihood of success of a claim, the amount of the insured’s damages, and the cost of litigating the claim); 9 Russ, supra, § 124.10 (“the insurer’s subrogation rights are generally not prejudiced by a nonconsensual settlement when ... the tortfeasor lacks assets from which an insurer might recover under its subrogation rights”). The referenced factors would not necessarily be an exclusive list of what demonstrates actual prejudice.

[¶ 16] We agree with the rationale and reasoning of the foregoing cases. Accordingly, we hold that a UIM insurer which seeks to deny coverage based upon the insured’s failure to notify the insurer of a proposed settlement with the tortfea-sor must demonstrate that it suffered actual prejudice resulting from the lack of notice.

C

[¶ 17] In this case, the district court decided this issue within the context of summary judgment and determined that Center Mutual had been adversely affected by lack of notice of the settlement because it could have sought a judgment against Chris Goehring which may have theoretically been collectable at some point in the future. The determination whether an insurer has been adversely affected or prejudiced by an unauthorized settlement is a question of fact that is generally inappropriate for summary judgment. See, e.g., Hoel, 9 Ill.Dec. 390, 366 N.E.2d at 905; Kapadia, 418 N.W.2d at 852; Greenvall, 1998 ME 204, ¶ 13, 715 A.2d 949; MacInnis, 526 N.E.2d at 1261; Green, 2003 UT 48, ¶ 37, 89 P.3d at 97; 3 Widiss, supra, § 43.5.

[¶ 18] Center Mutual contends, and the trial court concluded, that a tortfeasor’s assets are immaterial to the determination whether the settlement prejudiced the insurer’s rights, because the insurer is adversely affected as a matter of law when it loses its opportunity to attempt to secure a judgment against the tortfeasor through subrogation. Center Mutual stresses that N.D.C.C. § 26.1-40-15.6(7) uses the phrase “adversely affects the rights of the insurer,” and does not mention assets of the tortfeasor. Center Mutual essentially contends that its “rights” were adversely affected merely by the fact it lost its right to subrogation, because it might have obtained a judgment that might have been collectable in the future. This theory has been widely rejected. See, e.g., Southeastern Fid. Ins. Co. v. Earnest, 395 So.2d 230, 230-31 (Fla.Dist.Ct.App.1981); Bantz, 864 P.2d at 623-24; Kapadia, 418 N.W.2d at 852; Green, 2003 UT 48, ¶ 33, 89 P.3d 97. Allowing an insurer to avoid coverage when it lost sub-rogation rights which carried no reasonable possibility of collection beyond the tendered policy limits would constitute a forfeiture and “would produce an undeserved windfall to the insurance company.” Bantz, at 624. Accordingly, we agree with the authorities holding that, in determining whether the insurer has suffered actual prejudice, relevant factors include the amount of the tortfeasor’s assets, the likelihood of recovery via subrogation, the extent of the insured’s damages, and the expenses and risks of litigating the insured’s cause of action. See Taylor, 978 P.2d at 749; Kapadia, 418 N.W.2d at 852; MacInnis, 526 N.E.2d at 1261 and n. 16; Green, 2003 UT 48, ¶33, 89 P.3d 97; 9 Russ, supra, § 124.10.

[¶ 19] The district court applied an incorrect legal standard and failed to consider the appropriate factors to determine whether Center Mutual suffered actual prejudice by Hasper’s settlement and release. On the record before us, genuine issues of material fact remain on whether Center Mutual was actually prejudiced by Hasper’s failure to give prior notice of the proposed settlement. Summary judgment was therefore inappropriate, and we reverse the judgment and remand for a determination of actual prejudice applying the proper legal standard.

IV

[¶ 20] We have considered the remaining issues and arguments raised by the parties and find they are either unnecessary to our decision or are without merit. We reverse the judgment and remand for further proceedings consistent with this opinion.

[¶ 21] DALE V. SANDSTROM, Acting C.J., and WILLIAM F. HODNY, S.J., EVERETT NELS OLSON, S.J., and DANIEL J. CROTHERS, J., concur.

[¶ 22] The Honorable EVERETT NELS OLSON, S.J., and the Honorable WILLIAM F. HODNY, S.J., sitting in place of VANDE WALLE, C.J., and MARIN6, J., disqualified.


source: Caselaw Access Project

author: CADY, Justice.

license: Public Domain

text:
    IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant, v. Jeffrey M. IRELAND, Respondent.
    No. 06-0649.
    Supreme Court of Iowa.
    Nov. 3, 2006.

      Charles L. Harrington and Wendell J. Harms, Des Moines, for complainant.
    Jeffrey M. Ireland, Ozark, MO, respondent, pro se.
   CADY, Justice.

The Iowa Supreme Court Attorney Disciplinary Board (“Board”) charged Jeffrey M. Ireland with numerous violations of the Iowa Code of Professional Responsibility for Lawyers. The charges primarily stemmed from his neglect of client matters in two cases. The Grievance Commission (“Commission”) found Ireland violated the Code of Professional Responsibility. It recommended he be suspended from the practice of law for a period of not less than six months. On our review, we find Ireland violated the Code of Professional Responsibility and impose an indefinite suspension of not less than three months.

I. Background Facts and Proceedings

Jeffrey Ireland is an Iowa lawyer. He practiced law in Cedar Rapids, Coralville, and Panora. Ireland moved from Iowa in December 2003, and his license was placed on inactive status in February 2004. He is not licensed to practice law in any other state. Ireland received a private admonition in July 2002 and a public reprimand in December 2002. In both instances, he committed neglect by failing to advise a client of the move of his law office. Ireland resides in Ozark, Missouri, and is employed outside the legal profession.

Two complaints were filed with the Board by former clients of Ireland. These complaints form the basis of these proceedings. The core facts surrounding the complaints are not in dispute. The first complaint (count I) was brought after Ireland failed to deliver a will to a client. Ireland drafted the will for the client in April 2002, and the client paid him for his legal services. Ireland kept the original will in his possession after it was executed by the client. The client later sought possession of the will by writing a letter to Ireland. The letter requested that Ireland send the will to her. He did not respond to the letter. Moreover, Ireland took no action to comply with the request until the client filed a complaint against hita more than two years later.

The second complaint (count II) was brought after Ireland neglected a client’s case. Ireland was retained by the client in April 2000 to pursue a civil rights action against an employer. The client was eventually forced to file a pro se petition with the court in October 2000, after she became concerned that Ireland would fail to file the action prior to the expiration of the statute of limitations. Ireland then amended the petition, and continued to represent the client in the litigation. Over the next two years, however, Ireland neglected the case in several ways. He was tardy in responding to discovery requests and missed several court deadlines for filing matters. He failed to keep his client apprised of the case. He also failed to pursue discovery, and failed to attend scheduled depositions. Finally, Ireland failed to resist a motion for summary judgment filed by the employer, and the case was dismissed by the court. One of the grounds to support summary judgment was that the petition was filed beyond the statute of limitations.

Ireland did not contest the core facts of the complaints. Instead, he acknowledged his conduct, and was apologetic for his transgressions. He has not practiced law for over three years, and has no plans to return to Iowa to practice law.

II. Commission Proceedings

The Board charged Ireland with numerous violations of the Code of Professional Responsibility. The violations in count I included DR 1-102(A)(6) (conduct that adversely reflects upon fitness to practice law) and DR 9-102(B)(4) (failure to promptly deliver client property). The violations in count II included DR 1-102(A)(5) (conduct prejudicial to the administration of justice), DR 1-102(A)(6), and DR 6-101(A)(l) (handle a legal matter when not competent), DR 6-101(A)(2) (handle legal matter with inadequate preparation), and DR 6-101(A)(3) (neglect of client matter). Ireland stipulated that he violated each disciplinary rule, and further stipulated to the underlying facts.

Based on the stipulation, the Commission found Ireland violated the specific provisions of the Code of Professional Responsibility. It recommended that he be suspended from the practice of law for not less than six months.

III. Scope of Review

“We review attorney disciplinary actions de novo.” Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Bernard, 653 N.W.2d 373, 375 (Iowa 2002). “We are not bound by the findings of the commission, but we give them weight.” Id.

IV. Violations

An attorney who possesses property of a client that the client is entitled to receive is obligated to promptly deliver the property to the client when the client requests the property. DR 9-102(B)(4). A violation of this duty could reflect adversely on the fitness of the lawyer to practice law. DR 1-102(A)(6).

Ireland was in possession of a will belonging to a client. The client had paid Ireland for his services in connection with the preparation and execution of the will, and she was entitled to possession of the will upon request. Ireland violated DR 9-102(B)(4) when he failed to promptly deliver the will to the client after the request was made. His continual failure to comply with the duty under DR 9-102(B)(4) reflects adversely on his fitness to practice law. See DR 1-102(A)(6).

Attorneys are required to act competently. DR 6-101. This duty not only includes refraining from taking cases, without associating with another competent lawyer, when the lawyer knows or should know that he or she is not competent to handle the case, but also includes the lack of adequate preparation and neglect of client matters. DR 6-101(A)(l)-(3). Neglect is more than negligence, but involves indifference in the failure to advance the interests of the client when action is required. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Moorman, 683 N.W.2d 549, 551 (Iowa 2004). It results from extreme inaction or procrastination, and normally involves more than one act or omission. Id. In this case, Ireland violated all three components of the duty to practice law in a competent manner. His conduct was also prejudicial to the administration of justice, and it adversely reflected on his fitness to practice law. See DR 1-102(A)(5), (6).

V.Discipline

The Code of Professional Responsibility and the concomitant disciplinary system exist to maintain public confidence in the legal system and to provide a mechanism for policing poor lawyering. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Honken, 688 N.W.2d 812, 820 (Iowa 2004). In determining the appropriate discipline in an attorney disciplinary case, we consider a variety of general factors including the nature of the violation, the need for deterrence, the need for pub-lie protection, the preservation of the reputation of the legal profession, and the fitness of the lawyer to continue to practice law. See id.; Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Hohenadel, 634 N.W.2d 652, 655 (Iowa 2001). We also consider any past history of discipline. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Lane, 642 N.W.2d 296, 302 (Iowa 2002). Harm to the client is also a consideration. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Adams, 623 N.W.2d 815, 819 (Iowa 2001). Additionally, multiple incidences of neglect are an aggravating circumstance to consider. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Pracht, 656 N.W.2d 123, 126 (Iowa 2003).

When neglect of client matters is the principle violation, we have observed that the discipline generally falls within the range of a public reprimand to a six-month suspension. Moorman, 683 N.W.2d at 553. Yet, the discipline imposed in each case depends upon the particular facts and circumstances, and this fact-based outcome for each case tends to diminish the value of precedent. See Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Eich, 652 N.W.2d 216, 219 (Iowa 2002).

Considering all the facts and circumstances in this case, we conclude Ireland should be indefinitely suspended from the practice of law with no possibility of reinstatement for three months. This case is a blend of neglect and incompetence that clearly signals various concerns about Ireland’s fitness to practice law. The neglect perpetrated by Ireland on his clients was ongoing- and profuse, and followed on the heels of prior incidents of neglect visited upon other clients. The stipulation by Ireland supports the notion that his conduct adversely reflects on his fitness to practice law, and is consistent with his decision to voluntarily leave the practice. Thus, while a suspension may not be required to protect the public, it is consistent with the need to maintain the reputation of the profession as a whole. It is also consistent with the discipline we have imposed in prior similar cases of neglect. See Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Wickey, 679 N.W.2d 1 (Iowa 2004) (neglect and failure to account to client, together with other conduct, warranted six-month suspension); Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Waples, 677 N.W.2d 740 (Iowa 2004) (neglect of client matters warranted six-month suspension); Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. McKittrick, 683 N.W.2d 554 (Iowa 2004) (neglect of client matter and other associated conduct warranted three-month suspension); Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Frerichs, 671 N.W.2d 470 (Iowa 2003) (neglect of client matter and failure to safeguard client property, together with other conduct, warranted four-month suspension); Hohenadel, 634 N.W.2d at 652 (neglect of two client matters warranted four-month suspension).

YI. Conclusion

We suspend Ireland’s license to practice law with no possibility of reinstatement for a period not less than three months from the date of filing of this opinion. The suspension applies to all facets of the practice of law. Iowa Ct. R. 35.12(3). Upon any application for reinstatement, Ireland shall have the burden to prove he has not practiced during the period of suspension and that he meets all requirements of Iowa Court Rule 35.13. The costs of this proceeding are taxed against Ireland.

LICENSE SUSPENDED.

All justices concur except HECHT, J., who takes no part.

      . Iowa has adopted the Iowa Rules of Professional Conduct, effective July 1, 2005. However, the conduct in this case occurred prior to July 1, 2005, making the Code of Professional Responsibility applicable to these proceedings.


author: LARSON, Justice.

text:
    James E. GAMBLE, Appellant, v. STATE of Iowa, Appellee.
    No. 04-1965.
    Supreme Court of Iowa.
    Nov. 3, 2006.
    Linda Del Gallo, State Appellate Defender, and Robert P. Ranschau, Assistant State Appellate Defender, for appellant.
    Thomas J. Miller, Attorney General, Kristin Guddall, Assistant. Attorney General, John P. Sarcone, County Attorney, and Susan Cox, Assistant County Attorney, for appellee.
   LARSON, Justice.

James Gamble was convicted of second-degree robbery under Iowa Code sections 711.1 and 711.3 (1999), and that conviction was affirmed by the court of appeals. Gamble filed an application for postconviction relief under Iowa Code chapter 822, which was denied by the district court. The court of appeals affirmed, and we granted Gamble’s application for further review. We vacate the decision of the court of appeals, reverse the judgment of the district court, and remand.

I. Facts and Prior Proceedings.

In Gamble’s application for postconviction relief, filed on October 7, 2003, he requested the appointment of counsel. On October 23, 2003, the district court appointed an attorney and further directed that,

[pjursuant to Iowa Code section 822.6, counsel shall review the application with the applicant and determine if the application contains a proper claim for relief or whether the applicant has a viable claim for such relief
Counsel shall report to this Court on December 5, 2003, at 8:00 a.m. in Courtroom 313 as to the status of the Application for Post-Conviction Relief and/or file an Amended Application for Post Conviction Relief setting forth any viable claims under appropriate law, or file a report with the Court and/or Application to Withdraw, trial scheduling conference, or a Dismissal of the Application if it is determined the application does not have any viable claims.

(Emphasis added.) The italicized portions of this order, in substantially the same form, have apparently been in widespread use in Iowa. However, for reasons to be discussed, we conclude these types of provisions should not be used.

On January 30, 2004, Gamble’s attorney filed his report as ordered and, at the same time, filed an amended application. In his report, the attorney separately addressed each of Gamble’s claims, explaining what he had done to investigate each of them and his assessment of their merit. The attorney concluded that, except for one, all of Gamble’s claims lacked merit. The one exception was Gamble’s claim that his trial attorney had failed to impeach one of the State’s witnesses.

On February 18, 2004, Gamble filed a pro se supplement to his application and responded to his lawyer’s assessment of his case. Gamble waived six of the claims originally included in his application. However, he did not waive five remaining claims, including his pro se claims, and requested that the court address all of them.

The district court denied Gamble’s application. In so doing, it specifically addressed and rejected the one ineffective-assistance claim made by Gamble’s attorney. The court did not, however, address Gamble’s additional pro se claims. Gamble appealed, and his appellate counsel, likewise, raised only that claim advanced by his postconvietion counsel. Gamble filed a supplemental pro se brief, arguing that the court erred in denying his application, that the court had abdicated its responsibility by incorporating his lawyer’s report in the court’s judgment, and that the court had failed to adjudicate Gamble’s pro se claims.

On this appeal, we do not address the merits of Gamble’s ineffective-assistance-of-counsel claims; that will have to await another day, as this case must be remanded. Our focus is on Gamble’s claim that the district court erred by ordering his attorney to assess Gamble’s case, by adopting his counsel’s report, and by failing to address Gamble’s pro se claims.

II. The Court’s Order.

The court’s order on the postconviction application stated, in part, that, on January 30, 2004,

Mr. Denniston filed a report to the Court stating he could not find adequate evidence or law to support Petitioner’s original claims. The court agrees with Mr. Denniston’s analysis of the invalidity of these claims, and determines they do not establish a basis for postconviction relief based upon the reasoning set forth in Mr. Denniston’s findings which are incorporated by reference herein.

(Emphasis added.)

Despite the district court’s reliance on Iowa Code section 822.6 in ordering counsel to evaluate his client’s case, that section does not provide for such an evaluation; sections 822.6 and 822.7 clearly place, that responsibility on the court. Gamble complains that the court’s order for his attorney to assess and report on the validity of Gamble’s claims creates two problems: First, it places his counsel in a conflict-of-interest situation. (In fact, Gamble summed it up when he complained in his pro se brief on further review that his appointed counsel’s report “attacked and challenged the pro se claims.”) Second, this results in the court’s abdication of its own decision-making responsibility.

Section 822.6 contemplates that a claimant in a postconviction case will be allowed to have extensive pro se participation in the proceedings. This is evidenced by this language in section 822.6:

The court may make appropriate orders for amendment of the application or any pleading or motion, or pleading over, for filing further pleadings or motions, or for extending the time of the filing of any pleading. In considering the application the court shall take account of substance regardless of defects of form.

The statute even provides that, if an applicant fails to furnish an adequate record, the opposing party (here, the State) “shall file with its answer the record or portions thereof that are material to the questions raised in the application.”

Our case law, moreover, recognizes these accommodations. We have said:

A postconviction relief applicant may file applications, briefs, resistances, motions, and all other documents the applicant deems appropriate in addition to what the applicant’s counsel files. This qualification should give the applicant assurance that all matters the applicant wants raised before the district court will be considered.

Leonard v. State, 461 N.W.2d 465, 468 (Iowa 1990) (emphasis added). This is consistent with the general provision of section 822.7 that “[t]he court shall make specific findings of fact, and state expressly its conclusions of law, relating to each issue presented.”

It appears to be quite common practice among our district courts to require appointed counsel to evaluate their clients’ cases and to then rely on these evaluations in making the courts’ rulings. This reality has not been lost on Gamble, who, in his pro se brief on further review, cites Leonard and

requests the Court to retain this case and tell the district courts that they shall not abdicate their duty and responsibility to adjudicate each claim presented [and determine whether] a court-appointed attorney [has] the power and/or authority to actually adjudicate an application for postconviction relief; and ... can a district court transfer its duty and responsibility under Iowa Code section 822.7 [requiring specific rulings on issues] to any attorney???

An attorney, of course, may not ethically urge grounds that are lacking in legal or factual support simply because his client urges him to do so. Our rules require that an attorney certify that any claim advanced

is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law ....

Iowa R. Civ. P. 1.413(1). On the other hand, neither should defense counsel be expected to criticize or diminish their own client’s case; that role should be filled, if at all, by counsel for the resisting party.

A pro se applicant has no ethical prohibitions against filing claims that a court might find to be without merit and may, under our postconviction statute, demand full consideration of all claims raised — those raised pro se as well as those raised by counsel. See Leonard, 461 N.W.2d at 468. We realize that a detailed consideration of pro se claims can be burdensome. This case presents a good example: the applicant filed a thirty-page amended application with many prolix and confusing claims. Ruling on all of the issues raised, as required by section 822.7, is challenging to a trial court, but the need for individualized findings is substantial.

As the Ohio Supreme Court has stated:

The obvious reasons for requiring findings are "... to apprise petitioner of the grounds for the judgment of the trial court and to enable the appellate courts to properly determine appeals in such a cause.” The existence of findings and conclusions are essential in order to prosecute an appeal. Without them, a petitioner knows no more than he lost and hence is effectively precluded from making a reasoned appeal. In addition, the failure of a trial judge to make the requisite findings prevents any meaningful judicial review, for it is the findings and the conclusions which an appellate court reviews for error.
... Requiring a petitioner to perfect an appeal without having findings before him would deter judicial economy, for it would guarantee two trips to the appellate court — one to force the findings and another to review the decision on the merits.

State v. Mapson, 1 Ohio St.3d 217, 438 N.E.2d 910, 912-13 (1982) (citations omitted) (footnote omitted). Our court in Allen v. State, 217 N.W.2d 528, 531 (Iowa 1974), also noted the need for specific findings for proper review on appeal.

Despite the requirement of section 822.7 that the district court make specific findings of fact and conclusions of law as to each issue, we have said that substantial compliance is sufficient. Even if the court does not respond to all of the applicant’s allegations, the ruling is sufficient if it responds to all the issues raised. State v. Allen, 402 N.W.2d 438, 441 (Iowa 1987); Rheuport v. State, 238 N.W.2d 770, 777 (Iowa 1976).

This case must be remanded for a new hearing on Gamble’s postconviction application. Postconviction counsel shall not be required to assess the validity of Gamble’s claims, and the court, pursuant to section 822.7, shall provide findings of fact and conclusions of law with respect to each of Gamble’s issues.

DECISION OF COURT OF APPEALS VACATED; JUDGMENT OF DISTRICT COURT REVERSED; CASE REMANDED.

WIGGINS and HECHT, JJ., take no part.

      . See Iowa R.App. P. 6.13(2):
      Any criminal defendant or applicant for postconviction relief who wishes to file a pro se supplemental brief or designate additional parts of the district court record for inclusion in the appendix may do so within 15 days of service of the proof brief filed by their counsel. Any pro se supplemental brief or designation filed beyond this period by a properly served defendant or applicant will not be considered by the court and no response by the State will be required or allowed.


author: DIETZEN, Judge.

text:
    A.R. MINCH, Appellant, v. BUFFALO-RED RIVER WATERSHED DISTRICT, Respondent.
    No. A05-2339.
    Court of Appeals of Minnesota.
    Nov. 7, 2006.

      Roger J. Minch, Serkland Law Firm, Fargo, ND, for appellant.
    Tami L. Norgard, Vogel Law Firm, Fargo, ND, for respondent.
    Considered and decided by ROSS, Presiding Judge; DIETZEN, Judge; and CRIPPEN, Judge.

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

   OPINION

DIETZEN, Judge.

Appellant A.R. Minch appeals from summary judgment dismissing his claims for injunctive relief and affirming respondent Buffalo-Red River Watershed District’s order requiring Minch to clean and maintain a public right-of-way ditch on his property, arguing that (1) the watershed district lacked statutory authority to order him to clean a public right-of-way ditch; (2) its order violated his right to procedural due process of law; (3) its order was an unconstitutional taking of his property; (4) its order was unconstitutionally void for vagueness; and (5) he was denied equal protection of the law. Because a watershed district lacks authority under chapter 103D of the Minnesota Statutes to order a landowner to clean a private ditch subject to the watershed district’s public right-of-way easement, we reverse. But because neither the watershed district nor the district court determined whether cleaning and removing the siltation in the ditch was an “obstruction” within the meaning of Minn.Stat. § 103E.075 (2004) or a “repair” under Minn.Stat. § 103E.701 (2004), we remand for further proceedings consistent with this decision.

FACTS

Before his death, appellant A.R. Minch owned certain real property located in Section 34, Kragnes Township, Clay County, Minnesota. Bordering Minch’s property to the north is County State Aid Highway (CSAH) No. 5, to the east is Section 35 and property owned by the Brendemuhl family, and to the west is Ditch No. 51, which runs in a north-south direction, beginning at the northwest corner of Minch’s property.

Located along the entire north end of Minch’s property and within the right-of-way of CSAH No. 5, is a private ditch in which the watershed district has a public right-of-way easement. The ditch is known as the Section 34 ditch, and conveys surface water from neighboring properties as part of the watershed district’s overall drainage plan for the area. The ditch has existed at least since CSAH No. 5 was constructed in the 1950s, which is before Minch acquired the property. Clay County once maintained the Section 34 ditch, but authority over the ditch was transferred to respondent Buffalo-Red River Watershed District (“watershed district”) in accordance with Minn.Stat. § 103D.625, subd. 1. The Buffalo-Red River Watershed District exists and is organized pursuant to Minn.Stat. § 103D.101, subd. 1 (2004).

In 2002, Minch petitioned the watershed district for an improvement project to Ditch No. 51 to improve drainage around his property and Kragnes Township. When the watershed district approved and constructed the project, it concluded that the Section 34 ditch would receive increased drainage from neighboring properties, particularly to the east. As a result, the watershed district assessed benefited landowners, like the Brendemuhls, for the cost of the project.

Shortly after, a dispute arose among Minch, the Brendemuhls, Clay County, and the watershed district regarding the responsibility for removing soil, sediment, and silt that had filled in portions of the Section 34 ditch. Minch applied for a permit to clean the westerly 80% of the ditch, which was located on his property, but he refused to clean the remainder of the ditch unless he received drainage concessions from the Brendemuhls to the east. Because the watershed district wanted the whole length of the Section 34 ditch cleaned, it recommended to the county that it refuse to issue the permit.

At the October 25, 2004 watershed district board meeting, Wayne Brendemuhl petitioned the watershed district to require Minch to remove the soil and silt obstruction along the entire length of the Section 34 ditch. Minch was not present at the meeting. Board members expressed concern that cleaning the Section 34 ditch required access and the use of equipment on Minch’s property located on the south side of the ditch. Therefore, the board voted to have its attorney provide legal advice regarding the board’s options for cleaning the ditch.

At the November 22, 2004 watershed district board meeting, which Minch and his attorney attended, the watershed district’s attorney informed the watershed district that to clean the ditch it had the option of acquiring by condemnation the rights to Minch’s property on the south side of the ditch. Alternatively, it could issue an order directing Minch to clean the entire ditch. Board managers noted that the watershed district had issued orders to other property owners to clean ditches on their property.

Minch argued that the watershed district lacked the authority to require him to clean the ditch, that the watershed district failed to give proper notice of the meeting, and that an order requiring him to clean the entire ditch would amount to a taking. But the watershed district concluded that cleaning the Section 34 ditch was consistent with its drainage plan and that it was important that the ditch not be obstructed for the benefit of the neighboring property owners to the east, who were assessed for the benefit of using the Section 34 ditch. The watershed district then approved a motion to order Minch to clean the Section 34 ditch by December 13, 2004. Minch argued that he was being singled out for unfair treatment, but the watershed district stated that it had been unsuccessfully trying to resolve the issue for almost a year and needed to move on to other problems.

In January 2005, Minch brought a declaratory-judgment action, challenging the watershed district’s authority to require him to clean the Section 34 ditch. The watershed district moved for summary judgment. In a September 23, 2005 order, the district court granted the watershed district’s motion and directed Minch to clean the ditch according to specifications issued by the Clay County engineer. On October 14, a judgment was entered dismissing the action and awarding costs to the watershed district.

The watershed district brought a motion to have Minch found in contempt for failure to comply with the September 23 order. In an order filed on December 1, 2005, the district court declined to hold Minch in contempt but authorized the watershed district to clean the ditch. The ditch was subsequently cleaned and costs were assessed to Minch. This appeal follows.

ISSUES

l.Does a watershed district have authority under chapter 103D of the Minnesota Statutes to order a private landowner to clean a private ditch with a public right-of-way easement?

2. Does chapter 103E of the Minnesota Statutes allow a watershed district to order the removal of obstructions in drainage ditches under its jurisdiction?

3. Did the watershed district violate Minch’s right to procedural due process when it failed to provide him adequate notice of a hearing to argue why he should not be required to clean the ditch?

4. Did the district court order requiring Minch to clean and maintain the ditch result in a taking of his property, and is it unconstitutionally void for vagueness?

ANALYSIS

I.

Minch argues that the watershed district lacks authority under chapter 103D to order him to clean and maintain its public right-of-way to convey surface water through the Section 34 ditch. We agree.

The interpretation of a statute is a question of law, which we review de novo. Brookfield Trade Ctr., Inc. v. County of Ramsey, 584 N.W.2d 390, 393 (Minn.1998). When interpreting a statute, we give each word its plain and ordinary meaning. State v. Larivee, 656 N.W.2d 226, 229 (Minn.2003); see also Minn.Stat. § 645.08(1) (2004) (mandating that words and phrases be construed according to their common and approved usage).

Chapter 103D of the Minnesota Statutes governs the administrative powers and operations of watershed districts, while chapter 103E governs the proceedings by which new drainage systems are constructed and existing ditches are maintained by drainage authorities such as county boards or watershed districts. See Minn.Stat. 103D.625, subd. 3; In re Comm’rs Order Denying Permit Application 93-1021, 527 N.W.2d 173, 175 (Minn.App.1995) (stating that “[cjhapter 103D delineates powers and procedures pertaining to watershed districts generally, while chapter 103E lays out supplemental powers and procedures applicable to drainage authorities”), review denied (Minn. Apr. 27, 1995). Because chapters 103D and 103E are part of the “Minnesota Water Law” and govern similar subject matter, they should be read in pari materia. See Hagen v. Martin County, 253 Minn. 367, 371, 91 N.W.2d 657, 660 (1958) (concluding that the various chapters of the Minnesota Water Law should be construed together); see also State v. McKown, 475 N.W.2d 63 (Minn.1991) (“Statutes in pari materia are those relating to the same person or thing or having a common purpose.”).

Chapter 103D provides that a watershed district may be created specifically “to repair, improve, relocate, modify, consolidate, and abandon all or part of drainage systems within a watershed district” and “to control or alleviate soil erosion and siltation of watercourses or water basins.” MinmStat. § 103D.201, subd. 2(9), (10) (2004). Chapter 103D also gives watershed districts specific and general powers. Watershed districts have the specific power to “construct, clean, repair, alter, abandon, consolidate, reclaim, or change the course or terminus of any public ditch, drain, sewer, river, watercourse, natural or artificial, within the watershed district.” Minn.Stat. § 103D.335, subd. 8 (2004). And watershed districts have the general power of eminent domain and to perform all acts “necessary and proper for the watershed district to carry out and exercise the powers expressly vested in it.” Minn. Stat. § 103D.335, subd. 1(4), (5) (2004). But watershed districts lack general police powers and must therefore achieve their purposes through an enumerated power. In re 1994 and 1995 Shoreline Improvement Contractor Licenses of Landview Landscaping, Inc., 546 N.W.2d 747, 750 (Minn.App.1996), review denied (Minn. June 11, 1996); see also Johnson v. Steele County, 240 Minn. 154, 160, 60 N.W.2d 32, 37 (1953) (“Statutory drainage proceedings invoke the power of eminent domain.”).

The parties do not dispute that the watershed district has a public right-of-way easement to convey surface water generated by neighboring properties to the east through Minch’s private ditch as part of its overall watershed management plan. But Minch correctly argues that the watershed district lacks the authority under chapter 103D to order him to clean and maintain his private ditch.

Although chapter 103D gives the watershed district the authority to clean Minch’s ditch, we find nothing in the chapter expressly authorizing the watershed district to order Minch to clean and maintain his ditch for the benefit of the watershed district. And we do not construe chapter 103D to implicitly authorize the watershed district to require private landowners to clean and maintain a ditch for the watershed district’s benefit. To construe chapter 103D to confer on a watershed district implicit authority to order private landowners to clean and maintain a ditch, would contravene the legislature’s apparent decision not to grant such authority. See, e.g., State by Spannaus v. Lloyd A. Fry Roofing Co., 310 Minn. 528, 534 n. 6, 246 N.W.2d 696, 700 n. 6 (1976) (stating that courts cannot construe statutes to confer upon agencies implicit authorityi when to do so would contravene the apparent intent of the legislature). If the legislature had intended to grant watershed districts that authority in chapter 103D, it could have done so explicitly.

Further, Minn.Stat. § 103E.075 (2004) explicitly gives a drainage authority the power to order a private landowner to remove an obstruction in a drainage ditch. Because legislative intent is presumed to be articulated in the plain language of a statute, we discern no legislative intent to convey such authority in chapter 103D, and clear legislative intent to do so in chapter 103E. See, e.g., State v. Iverson, 664 N.W.2d 346, 350-51 (Minn.2003) (stating that the best method of determining legislative intent is by relying on a statute’s plain meaning).

The watershed district cites Krahl v. Nine Mile Creek Watershed District, 283 N.W.2d 538, 542 (Minn.1979), for the proposition that it has implied authority to take all necessary and proper action to regulate problems of water use. In Krahl, the court held that the watershed district had the implied authority to enact floodplain regulations, reasoning that one of the watershed district’s primary purposes was to provide relief from flooding. Id. The watershed district argues that, like the watershed district in Krahl, it has the implied authority to order the removal of the siltation, which is one of its primary purposes.

But in Krahl there was no separate statute setting forth procedures for cleaning and maintaining drainage systems as there is here. See Minn.Stat. § 103D.625, subd. 3 (noting that the provisions of the Drainage Law (103E) are incorporated into the Watershed Law (103D) and govern ditch construction and maintenance issues). Because chapter 103E explicitly authorizes the watershed district to order a private landowner in certain circumstances to remove an obstruction in the drainage system, Krahl is distinguished from the present case. We thus conclude that the watershed district lacks authority under Minnesota Statutes chapter 103D to order Minch, a private landowner, to clean a private ditch with a public right-of-way easement.

II.

Minch next argues that. chapter 103E does not apply to the watershed district’s public right-of-way easement because the ditch in question is not a “drainage system.” We disagree.

A. The watershed district is a drainage authority under chapter 103E

The district court concluded that the Section 34 ditch was not part ' of a “drainage system” within the meaning of chapter 103E, reasoning that it was not “established and constructed by a drainage authority.” We conclude otherwise. Chapter 103E establishes the rules by which drainage authorities build and maintain public drainage systems. Marshall County v. State, Dep’t of Natural Res., 636 N.W.2d 570, 574 (Minn.App.2001). Minn. Stat. § 103E.005, subd. 12 (2004), defines a “drainage system” as “a system of ditch or tile, or both, to drain property, including laterals, improvements, and improvements of outlets, established and constructed by a drainage authority.” A drainage authority means “the board or joint county drainage authority having jurisdiction over a drainage system or project.” Minn.Stat. § 103E.005, subd. 9 (2004). Minn.Stat. § 103D.625, subd. 1 (2004) provides a procedure for a watershed district to take over the work of a drainage authority, including the right to repair and maintain the drainage system.

Here, the Buffalo-Red River Watershed District acquired jurisdiction over the county drainage system with the promulgation of the watershed district rules, but the exact date is unclear from the record. Its jurisdiction is undisputed by the parties. Thus, the watershed district is a drainage authority under chapter 103E, and its drainage activities are governed by that statute. We turn to an analysis of whether the watershed district has authority under chapter 103E to order Minch to clean and maintain the ditch.

B. The watershed district may order the removal of obstructions under Minn.Stat. § 103E.075

Chapter 103E explicitly authorizes the watershed district to clean the siltation present in the Section 34 ditch. First, the watershed district has the authority to determine that a drainage system has been obstructed. Minn.Stat. § 103E.075 (2004) provides:

Subd. 1. Notification to responsible party. If the board determines that a drainage system has been obstructed, including by the installation of bridges and culverts of insufficient hydraulic capacity, the board shall notify the person or public authority responsible for the obstruction as soon as possible and direct the responsible party to remove the obstruction or show the board why the obstruction should not be removed. The board must set a time and location in the notice for the responsible person to appear before the board.
Subd. 2. Obstruction on private property. If the obstruction is on private property, the owner is responsible for the obstruction unless the owner proves otherwise. The owner must be notified by certified mail at least ten days before the hearing.

When a watershed district determines that an obstruction exists within the meaning of Minn.Stat. § 103E.075, it has the authority to order a responsible person to remove the obstruction at that person’s expense. If the responsible person refuses, the watershed district can file a lien against the property for the cost of removing the obstruction. Minn.Stat. § 103E.075, subd. 3.

But the statute does not define the term “obstruction.” When interpreting a statute, we give words their plain and ordinary meaning. Minn.Stat. § 645.08(1). The term “obstruct” means “to block or fill (a passage) with obstacles or an obstacle.” The American Heritage Dictionary of the English Language 1214 (4th ed.2000). Under the principle of noscitur a sociis, a term that is capable of several meanings is defined by the words with which the term is associated. Wayne v. MasterShield, Inc., 597 N.W.2d 917, 920 (Minn.App.1999), (citing Jarecki v. G.D. Searle & Co., 367 U.S. 303, 307, 81 S.Ct. 1579, 1582, 6 L.Ed.2d 859 (1961)), review denied (Minn. Oct. 21, 1999); see also State v. Suess, 236 Minn. 174, 182, 52 N.W.2d 409, 415 (1952) (stating “the meaning of doubtful words in a legislative act may be determined by reference to their association with other associated words and phrases”).

Here, the statute lists “the installation of bridges and culverts of insufficient hydraulic capacity” as types of obstructions covered by the subdivision. Thus, the words with which the term “obstruction” is associated involve an obstruction that is artificial in nature or man-made, like a bridge or culvert, that is constructed or installed in a relatively short period of time, and that permits the identification of the responsible party, rather than an obstruction that occurs naturally or gradually over a long period of time.

Based on the definition of the word “obstruct,” and the examples of obstructions set forth in the statute, we conclude that the legislature intended to limit the type of obstructions the responsible party can be ordered to remove to obstacles that are artificial in nature or man-made, that are constructed or installed, and that block or impede the normal flow of the drainage system. We do not discern a legislative intent to extend the scope of this particular subdivision to obstructions that occur naturally or gradually over a long period of time.

C. A watershed district may make repairs under Minn.Stat. § 103E.705

Additionally, Minn.Stat. § 103E.705 (2004) sets forth the procedure for a watershed district to inspect a drainage system and make necessary repairs. Under chapter 103E, “repair” means:

[T]o restore all or a part of a drainage system as nearly as practicable to the same condition as originally constructed and subsequently improved, including resloping of ditches and leveling of waste banks if necessary to prevent further deterioration, realignment to original construction if necessary to restore the effectiveness of the drainage system, and routine operations that may be required to remove obstructions and maintain the efficiency of the drainage system.

MinmStat. § 103E.701, subd. 1 (2004).

The term “repair” is thus defined in terms of its purpose, namely, to restore the “effectiveness of a drainage system,” and includes routine operations necessary “to remove obstructions and maintain the efficiency of a drainage system.” Because the removal of the natural accumulation of silt in a ditch as a result of erosion or drainage may be necessary to restore the effectiveness and efficiency of a drainage system, the removal of silt may amount to a “repair” within the meaning of Minn. Stat. § 103E.705. See, e.g., McLeod County Bd. of Comm’rs v. State, Dep’t. of Natural Res., 549 N.W.2d 630, 633 (Minn.App.1996) (holding that because affected landowners had a property right to have a drainage ditch maintained, the drainage authority must undertake maintenance), review denied (Minn. Aug. 20, 1996); see also In re Judicial Ditch No. 2, 219 Minn. 255, 17 N.W.2d 499 (1945) (holding that landowners affected by a ditch system obstructed by soil and vegetation had a right to have it “repaired” by county drainage authority with the costs assessed to all affected landowners).

In summary, chapter 103E sets forth a statutory procedure for a watershed district to determine the existence of a specific type of obstruction, which the responsible party is obligated to remove at its expense under Minn.Stat. § 103E.075, and a repair procedure under Minn.Stat. § 103E.705 to remove any type of obstruction at the expense of the watershed district, but subject to the right of the watershed district to assess the costs of repair to the landowners who benefit from the repair. The watershed district thus has general authority under Minn.Stat. § 103E.705 to remove any obstruction from a drainage system and limited authority under Minn.Stat. § 103E.075 to order a responsible party to remove specific types of obstructions at that person’s expense. Our construction of the relevant statutes gives effect to the provisions of Minn.Stat. § 103E.075 and Minn.Stat. § 103E.705, and does not render either superfluous. See Minn.Stat. § 645.16 (2004) (“Every law shall be construed, if possible, to give effect to all its provisions.”).

Here, neither the watershed district nor the district court determined whether the siltation obstruction in the Section 34 ditch constituted an obstruction within the meaning of Minn.Stat. § 103E.075. Without that determination, we are unable to review the resulting decision on appeal. Consequently, we reverse the district court’s determination that the watershed district has the authority to order a private landowner to clean the ditch under chapter 103D, and remand for further proceedings to determine whether the siltation in the Section 34 ditch constitutes an obstruction under Minn.Stat. § 103E.075. The district court may reopen the record to conduct evidentiary hearings, which may include remanding to the watershed district to make the initial determination of whether the siltation constituted an obstruction within the meaning of MinmStat. § 103E.075.

III.

Minch argues that the watershed district did not afford him procedural due process when it ordered him to clean the Section 34 ditch. Specifically, Minch claims that the watershed district failed to provide him adequate notice of a hearing where he could have argued why he should not be required to clean the ditch. In general, property interests in a ditch system must not be infringed without due process of law. State by Humphrey v. Byers, 545 N.W.2d 669, 672 (Minn.App.1996). And statutory provisions governing ditch proceedings must be strictly followed. State v. Oldre, 179 Minn. 566, 569, 229 N.W. 878, 879 (1930).

MinmStat. § 103E.075, subd. 1, requires the watershed district board to notify the party responsible for an obstruction and to direct that party to remove the obstruction or show the board why the obstruction should not be removed. . The notice must contain a time and location for the responsible person to appear before the board. Id. If the obstruction is on private property, notice is required at least ten days before a hearing. Id., subd. 2. Minn.Stat. § 103E.705, by contrast, does not require watershed districts to notify affected landowners before providing the repairs necessary to make a drainage system efficient, unless the repair is requested by third party petition pursuant to Minn.Stat. § 103E.715 (2004). See Minn.Stat. § 103E.705 (outlining the drainage authority’s repair procedure when not conducted pursuant to third-party petition); Swenson v. County of Norman, 297 Minn. 208, 210-11, 210 N.W.2d 242, N.W.2d 242, 244 (1973) (noting that the ditch-repair statute allows the drainage authority to make repairs on its own and hold hearings without notice); see also State, Dep’t of Natural Res. v. Kandiyohi County (In re Petition of Zimmer), 359 N.W.2d 266, 270 (Minn.1984) (“The procedure for repairing a ditch is much less involved than either the procedure for establishing a ditch or the procedure for improving one.”).

Here, the watershed district’s board did not send Minch a notice of the November 22, 2004 board meeting describing the scope of the hearing and providing him the opportunity to be heard. The watershed district contends that because Minch attended almost every watershed district meeting, and had discussed cleaning the ditch with the board for almost a year, he was afforded a hearing and its failure to send a written notice constituted harmless error. We disagree. The watershed district failed to notify appellant of the scope of the hearing, namely, whether it was proceeding under chapter 103D, Minn.Stat. § 103E.075, or Minn.Stat. § 103E.705. But because we reverse and remand for further proceedings to determine whether siltation constitutes an “obstruction” under Minn.Stat. § 103E.075, appellant’s procedural due process claim is moot. On remand, should the watershed district intend to proceed under Minn.Stat. § 103E.075, it must provide appellant with the notice the statute requires.

IV.

Minch argues that the district court order requiring him to clean and maintain the ditch results in a taking of his property and is unconstitutionally void for vagueness. Because we reverse and remand the case for further proceedings, we need not reach these issues and, therefore, we decline to do so.

Minch also argues that he was unfairly singled out by the watershed district for unfair treatment in violation of his right to equal protection of the laws. Specifically, he argues that the watershed district selectively enforced its rules and singled him out to bear the cost of alleviating the watershed district’s drainage problems. But because he did not adequately brief the issue, he waived consideration of the issue on appeal. See Melina v. Chaplin, 327 N.W.2d 19, 20 (Minn.1982) (holding that issues not briefed on appeal are waived).

V.

Minch and the watershed district each made cross-motions to strike portions of each other’s briefs. The watershed district argues that Minch supplemented his brief with irrelevant information that was not part of the district court record. Minch claims the watershed district mis-characterized the facts of the case. Because we reverse and remand for further proceedings, the motions to strike are moot and are, therefore, denied. See, e.g., State v. Johnson, 659 N.W.2d 819, 822 (Minn.App.2003) (stating that when the holding of the case has rendered the motion to strike moot, the motion is denied), review denied (Minn. July 15, 2003).

DECISION

Because a watershed district lacks authority under chapter 103D of the Minnesota Statutes to order a landowner to clean a private ditch subject to the watershed district’s public right-of-way easement, we reverse. But a watershed district has the authority to determine whether a blockage of its easement constitutes an obstruction within the meaning of Minn.Stat. § 103E.075 (2004) that a landowner may be obligated to remove. Because neither the watershed district nor the district court concluded whether the siltation was an “obstruction” within the meaning of Minn.Stat. § 103E.075, we remand for further proceedings consistent with this decision. The district court may reopen the record to conduct evidentiary hearings, which may include remanding to the watershed district to make the initial determination of whether the siltation constituted an obstruction under Minn.Stat. § 103E.075.

Reversed and remanded; motions denied.


author: STONEBURNER, Judge.

text:
    Mary E. RIXMANN, Appellant, v. CITY OF PRIOR LAKE, Respondent.
    No. A06-252.
    Court of Appeals of Minnesota.
    Nov. 14, 2006.

      Bradley J. Gunn, Patrick B. Steinhoff, Malkerson Gilliland Martin, L.L.P., and Timothy Welch, Leonard, Street and Dei-nard, Minneapolis, MN, for appellant.
    Suesan Leal Pace, Joseph G. Schmitt, Halleland Lewis Nilan & Johnson, Minneapolis, MN, for respondent.
    Considered and decided by TOUSSAINT, Chief Judge; GORDON W. SHUMAKER, Judge; and STONEBURNER, Judge.
   OPINION

STONEBURNER, Judge.

Appellant challenges summary judgment granted to respondent city dismissing her action seeking a declaration that a turnaround at the end of a public street had become public under Minn.Stat. § 160.05, subd. 1 (2004).

FACTS

Appellant Mary E. Rixmann owns property in the Breezy Point subdivision of respondent municipality of Prior Lake (the city). The original plat of the Breezy Point Addition created 17 lots, some located on a peninsula that extends into the lake. The plat included a private road that runs the length of the peninsula. That road has become a public road known as Breezy Point Road. At the end of Breezy Point Road is a circular driveway (turnaround) on the property of Kathleen Spielman and Cyril Schweich, who occupy the lot at the end of the peninsula. Rix-mann, whose property is adjacent to the Spielman-Schweich property, brought a declaratory judgment action, asserting that, through public use and maintenance for more than six years, the turnaround has become public under Minn.Stat. § 160.05, subd. 1 (2004). The city denied Rixmann’s claim and moved for summary judgment. The city argued that Rixmann failed to raise a genuine issue of material fact on the maintenance requirement of the statute. The district court agreed and granted summary judgment to the city. This appeal followed.

ISSUE

Did the district court err in concluding that Rixmann failed to establish a genuine issue of material fact on her claim that the city kept the turnaround in repair for at least six years as required for statutory dedication under Minn.Stat. § 160.05?

ANALYSIS

On appeal from summary judgment, we ask: (1) whether there are any genuine issues of material fact and (2) whether the district court erred in its application of law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990). We 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). A genuine issue for trial must be established by “substantial evidence,” and “the party resisting summary judgment must do more than rest on mere averments.” DLH, Inc. v. Russ, 566 N.W.2d 60, 69-71 (Minn.1997).

Minn.Stat. § 160.05, subd. 1 (2004) provides in relevant part:

When any road or portion of a road has been used and kept in repair and worked for at least six years continuously as a public highway by a road authority, it shall be deemed dedicated to the public to the width of the actual use and be and remain, until lawfully vacated, a public highway whether it has ever been established as a public highway or not.

Although the statute does not use the term “maintenance,” case law has consistently referred to the “kept in repair” language of the statute as “maintenance.” See Foster v. Bergstrom, 515 N.W.2d 581, 585-6 (Minn.App.1994) (citing Shinneman v. Arago Twp., 288 N.W.2d 239, 242 (Minn.1980) for the proposition that “[designation as a public street requires (1) use by the public and (2) maintenance by an appropriate government agency (3) over a continuous period of at least six years.”).

The sufficiency of public use and maintenance under the statute is a fact question. Id. at 586. But there is no genuine issue of material fact for trial when a nonmoving party fails to present evidence which is sufficiently probative with respect to an essential element of the case to permit reasonable persons to draw different conclusions. DLH, Inc., 566 N.W.2d at 71. The parties agree that Rixmann provided sufficient evidence of use by the public to withstand summary judgment, and the only issue on appeal is whether Rixmann provided sufficient evidence of maintenance to withstand summary judgment.

I. Standard of proof

The parties disagree on the standard of proof by which Rixmann must establish the maintenance requirement of the statute. The district court determined that Rixmann failed to present sufficient evidence of maintenance to create a genuine issue of material fact, but the district court did not address the parties’ dispute about the standard of proof. Because there is some confusion in the case law regarding the standard of proof required for statutory dedication, we first address that issue.

The proper standard of proof is a question of law. Petition of N. States Power Co., 402 N.W.2d 135, 138 (Minn.App.1987). In civil actions, the standard of proof required is generally a fair preponderance of the evidence. Carpenter v. Nelson, 257 Minn. 424, 427, 101 N.W.2d 918, 921 (1960), rev’d on other grounds, 416 N.W.2d 719, 730 (Minn.1987). In a statutorily created cause of action, the legislature generally has the power to determine the standard of proof. State by Humphrey v. Alpine Air Prods., Inc., 500 N.W.2d 788, 790 (Minn.1993). We regard the legislature’s silence about the standard of proof as a signal that the legislature intended the preponderanee-of-the-evi-dence standard. Id.

The city argues that clear and convincing evidence is required to establish statutory dedication, citing Foster, in which this court stated that statutory dedication requires “clear and convincing evidence” of public use and maintenance for six years. 515 N.W.2d at 586. But the standard of proof was not an issue in Foster, and Rix-mann correctly notes that neither the statute, which is silent as to the standard of proof,' nor the case law prior to Foster, supports the standard of proof articulated in Foster. Foster relied on Town of Wells v. Sullivan, 125 Minn. 353, 355, 147 N.W. 244, 245, (1914), which stated that “[tjhere must be definite and clear evidence that ... work, appropriate to keep public roads in proper condition, was done at public expense or by the public authorities.” 515 N.W.2d at 586. But Foster failed to note a case issued subsequent to Town of Wells that clarified the quotation, stating:

While its language refers to the necessity for “definite and clear evidence” of maintenance work under public auspices and at public expense, it is not to be taken that the performance of such work must be proven by anything more than the usual preponderance of evidence.

Whiteley v. Strickler, 159 Minn. 145, 146, 198 N.W. 420, 421 (1924). We conclude that the standard of proof required to establish dedication of a road under Minn. Stat. § 160.05, subd. 1, is a preponderance of evidence and not, as we erroneously stated in Foster, clear and convincing evidence.

II. Evidence of public maintenance

“To satisfy the maintenance requirement, the ‘maintenance must be of a quality and character appropriate to an already existing public road.’” Town of Belle Prairie v. Kliber, 448 N.W.2d 375, 379 (Minn.App.1989) (quoting Shinneman, 288 N.W.2d at 242). “It is not necessary that every part of a road be worked at government expense or that any particular part receive attention every year of the 6-year period.” Leeper v. Hampton Hills, Inc., 290 Minn. 143, 146, 187 N.W.2d 765, 767-68 (1971). It has long been established that to meet the statutory maintenance requirement, it is sufficient if maintenance is performed when necessary. Hansen v. Town of Verdi, 83 Minn. 44, 46, 85 N.W. 906, 907 (1901) (affirming public dedication of a road on evidence that, although very little work was required to keep the road in good repair, work had been done from time to time as necessary); Northfork Twp. v. Joffer, 353 N.W.2d 216, 218-9 (Minn.App.1984) (affirming district court’s conclusion that there was a statutory public dedication of a road based on public maintenance performed when necessary).

Rixmann argues that evidence of public use for more than six years creates a reasonable inference that the turnaround was kept in sufficient repair by the city to permit the public use. Rixmann argues that this inference, coupled with direct evidence of maintenance, is sufficient to defeat summary judgment. Rixmann also argues that the presence and maintenance of utilities in the center of the turnaround and evidence that the city plowed snow from the turnaround for more than six years is further evidence that the turnaround was maintained as part of the public road. The record shows that the city included plans for the turnaround in the 2004 road improvement project for Breezy Point Road. During this project, the city moved the utilities, constructed a concrete spillway to divert runoff from the turnaround into the lake, and repaved the turnaround.

The city argues that its activities in the turnaround cannot be characterized as the type of repair work contemplated by the statute because it was merely doing what was necessary to access public utilities it maintained in the turnaround for which the city has an easement. But the city only obtained an easement for the utilities after Rixmann asserted statutory dedication, and the record is silent about how the utilities came to be located and maintained by the city in the center of the turnaround prior to the easement.

The city argues that Rixmann has failed to provide evidence that its maintenance of the turnaround was of the “quality and character appropriate to an already existing public road” as required by Shinneman, 288 N.W.2d at 242. The city produced evidence that it has not performed “typical” road work such as oiling, gravell-ing, or sweeping, and therefore Rixmann has “essentially conceded” that the city did not maintain the turnaround as required for a determination of dedication. But as noted above, the eases on statutory dedication hold that Rixmann only has a burden to show that necessary work was performed over a six year period. Rixmann presented evidence that the work performed by the city in the turnaround, including snow plowing, not only equaled, but exceeded work performed on the rest of Breezy Point Road since its creation.

At oral argument before this court, the city argued for the first time that road maintenance cannot be sufficient for dedication if the road authority did not intend for dedication to occur, citing Wojahn v. Johnson, 297 N.W.2d 298, 307 (Minn.1980). But Wojahn merely affirmed a trial court’s conclusion that there was no statutory dedication where the town board had not authorized maintenance and any work performed was done voluntarily by individual workers as a favor to the landowner. Id. In this case, there is no evidence that any work performed by the city in the turnaround was not authorized by the city.

The city cites a number of cases as examples of “similar circumstances” in which courts have held that evidence of maintenance was insufficient to establish statutory dedication. See Ravenna Twp. v. Grunseth, 314 N.W.2d 214 (Minn.1981); Wojahn, 297 N.W.2d 298 (Minn.1980); Foster, 515 N.W.2d 581 (Minn.App.l994). But none of these cases involved summary judgment. Review of the findings in those cases was for clear error. In this case, we must view the evidence in the light most favorable to Rixmann to determine if there are any genuine issues of material fact that make summary judgment inappropriate. See Fabio, 504 N.W.2d at 761. This distinction is significant.

The district court characterized Rix-mann’s evidence of maintenance by the city “weak,” and stated that “it is unlikely that [Rixmann] presented sufficient evidence that the [e]ity 'maintained’ the [turnaround.” But a weak showing and unlikely success at trial does not justify a grant of summary judgment. The district court concluded that summary judgment was appropriate, because the record was “essentially devoid of evidence that the [c]ity performed maintenance on the [tjurnaround for six years.” The district court stated that “[o]ne lone project in 2004 would clearly be insufficient to satisfy the six year requirement.” But as noted above, the maintenance element of the statute does not require that work be performed every year for six years.

We conclude that the district court improperly weighed the evidence in light of what it perceived Rixmann must prove to succeed at trial, rather than applying the summary judgment standard. The district court stated, “it would seem impossible for [Rixmann] to sustain her burden and prove maintenance by the City for six years based upon testimony of individuals whose personal knowledge of such events would extend to three or four years at the most.” But Rixmann’s chance of success at trial is not relevant to the issue of whether she presented sufficient evidence to defeat summary judgment. DLH, Inc., 566 N.W.2d at 71.

DECISION

The standard of proof for dedication of a road under Minn.Stat. § 160.05, subd. 1 (2004) is a preponderance of evidence. Viewing the evidence in this ease in the light most favorable to Rixmann, we conclude that she has raised a sufficient issue of fact regarding the city’s maintenance of the turnaround to withstand summary judgment on her action to declare the turnaround public under Minn.Stat. § 160.05, subd. 1.

Reversed and remanded.

      . This case appears to be the first time that Minn.Stat. § 160.05 has been invoked to establish statutory dedication against the wishes of the road authority in question.

      . At oral argument before this court, the city asserted that the utilities were maintained on a private driveway by verbal agreement with Spielman and Schweich, but conceded that there is no evidence of such an agreement in the record.